FAQ’s COVID-19 and the workplace: Employer obligations
By Sean O’Donnell
These blog posts are meant to provide educational content and are not to be taken as legal advice.
The following provides a general overview in dealing with the current and potential impact of COVID-19. While the spread of COVID-19 remains a fluid and ongoing global pandemic, the purpose of this article is to provide employers with some fundamental information at this time. While we provide general guidance in this bulletin, we encourage employers to seek legal advice relative to the specific issues facing their business and their proposed response to those issues. SJO Legal will continue to monitor the situation and update our clients as necessary.
Where can employers get regular updates on COVID-19?
- Provincial health authorities.
- The Government of Canada’s Public Health Agency.
- Infection Prevention and Control Canada (IPAC).
What are my overall obligations as an employer?
Employers have an obligation to take reasonable care and to maintain safe and healthy workplaces under the Ontario Occupational Health and Safety Act (the “OHSA”). The manner in which employers are obligated to abide by this requirement will change along with the circumstances of COVID-19 and its spread. Prudent employers should remain adaptable and prepared to respond quickly to changes to the ongoing pandemic.
Employers across Canada have a broad obligation to take reasonable care and maintain a safe and healthy workplace for their employees. The OHSA provides that employers have the obligation to, among other things, “take every precaution reasonable in the circumstances for the protection of a worker”. What is “reasonable” will continue to evolve in light of new medical evidence and public health policy regarding the spread of COVID-19.
Can an employer take an employee’s temperature to determine whether they are infected?
Generally, human rights legislation restricts an employer’s ability to require medical examination or health testing. The general rule is that unless the examination or testing is reasonably required to assess the employee’s ability to work (i.e. a bona fide occupational requirement), the testing of employees via temperature checks would not be considered appropriate.
However, given rising concerns following the spread of COVID-19 within our borders, it is possible that it may become reasonable for employers to take more aggressive health testing measures, including temperature checks. Keep in mind, however, that as of the date herein, many employers have implemented business continuity procedures and work from home policies, which will largely reduce the need for employee testing.
One of my employees has contracted COVID-19. What should I do?
The employee should not return to work until they are free of the virus. The current advice from public health authorities is that all employees who worked “closely” with the infected employee should also be removed from the workplace for at least 14 days to ensure the infection does not spread further.
The consideration of working “closely” will depend on the nature of the workplace and the nature of the interaction between employees.
One of my employees has been in contact with an individual suffering from COVID-19. What should I do?
As with a confirmed case, the employee should not be permitted to return to work and should be sent home to self-quarantine out of an abundance of caution. Other employees who may have been in contact with this employee should also consider being removed from the workplace for at least 14 days.
Do I have to pay employees during self-isolation?
Subject to applicable policies and company practices, employers are generally not required to pay employees who are not working due to illness. Whether or not employees could be paid for a period of self-isolation will depend on a number of factors, including whether the employee is performing services while off work (i.e. working from home) and the reason the employee is not reporting for work.
Under applicable legislation, such as the Employment Standards Act, 2000 (the “ESA”), employees are entitled to a number of unpaid, but job-protected, sick days. Further, human rights legislation requires employers to accommodate employees with a disability to the point of undue hardship. In the opinion of the Ontario Human Rights Commission (the “OHRC”), COVID-19 is considered to be a disability and therefore a protected ground free from discrimination.
The business requires that employees travel. Can I require employees to travel during COVID-19?
This will depend on the nature of the employee and the particulars of the job. It will also be important to consider where the travel is taking place. Is it to one of the known centres of COVID-19, or is it a shorter trip to a rural area in Ontario?
The current advice from the provincial and federal governments has been to limit all unnecessary travel and to encourage social distancing. Employers generally have certain rights with respect to employee vacations, but generally cannot dictate where employees choose to travel for personal reasons. Employers should ensure employees are up to date on recommendations from public health authorities and aware of any consequences of traveling (including that they will likely be asked/potentially mandated to self-isolate or be quarantined for a period of two weeks upon return).
Older employees, for example, are known to be more at risk to the effects of COVID-19 and therefore should consider not traveling at all. If there is a legitimate work refusal for safety reasons, the OHSA will govern.
As of March 13, 2020, the Government of Canada has requested Canadians avoid any travel outside of Canada.
As of March 16, 2020, anyone, including Canadian citizens and permanent residents, who exhibit symptoms abroad will be restricted from returning to Canada. Individuals who are returning to Canada from international travel have been asked to self-quarantine for at least 14 days.
Can I fire an employee who has contracted COVID-19?
No; an employer may not terminate an employee or otherwise discriminate against an employee due to the illness. According to the OHRC, COVID-19 is considered to be a “disability” and therefore remains a protected ground free from discrimination.
What if one of my employees refuses to work because they are concerned with contracting COVID-19?
Employees generally have a right to refuse to work where they have a reasonable basis to believe that their duties present a danger to their health or safety. Whether or not an employee’s belief regarding the safety of the workplace is “reasonable” will depend on, among other things, the nature of the workplace, the employee’s individual circumstances and the current climate relative to COVID-19.
Employers are obligated to investigate and consider refusals to work, however, in light of ongoing concerns relative to social interaction, the typical method of investigations will have to adapt as necessary. Contact the professionals at SJO Legal for advice as to your particular situation.
Can I require my employees to work remotely?
Yes; in the current climate, this is a reasonable precautionary step and will be seen as a way to encourage social distancing.
What is the Federal Government doing to help employers retain its employees and continue operating businesses as efficiently as possible?
As of March 18, 2020, the Government of Canada has taken action to protect our economy, and the health, safety, and jobs of all Canadians during the global COVID-19 outbreak.
The following has been taken directly from Prime Minister’s office and further information can be found at the following link:
“Support for Workers
The Government of Canada is taking action to:
- Provide additional assistance to families with children by temporarily boosting Canada Child Benefit payments. This measure would deliver almost $2 billion in extra support.
- Introduce an Emergency Care Benefit of up to $900 bi-weekly for up to 15 weeks to provide income support to workers who must stay home and do not have access to paid sick leave. This measure could provide up to $10 billion to Canadians, and includes:
- Workers, including the self-employed, who are sick, quarantined, or who have been directed to self-isolate but do not qualify for Employment Insurance (EI) sickness benefits.
- Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick, but do not qualify for EI sickness benefits.
- EI-eligible and non EI-eligible working parents who must stay home without pay because of children who are sick or who need additional care because of school closures.
- Introduce an Emergency Support Benefit delivered through the Canada Revenue Agency to provide up to $5 billion in support to workers who are not eligible for EI and who are facing unemployment.
- Provide additional assistance to individuals and families with low and modest incomes with a special top-up payment under the Goods and Services Tax (GST) credit. This measure would inject $5.5 billion in the economy.
- Waive, for a minimum of six months, the mandatory one-week waiting period for EI sickness benefits for workers in imposed quarantine or who have been directed to self-isolate, as announced on March 11.
- Waive the requirement for a medical certificate to access EI sickness benefits.
- Extend the tax filing deadline for individuals to June 1, and allow all taxpayers to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after today and before September 2020. This relief would apply to tax balances due, as well as instalments, under Part I of the Income Tax Act. No interest or penalties will accumulate on these amounts during this period. This measure will result in households having more money available during this period.
- Provide eligible small businesses a 10 per cent wage subsidy for the next 90 days, up to a maximum of $1,375 per employee and $25,000 per employer. Employers benefiting from this measure would include corporations eligible for the small business deduction, as well as not-for-profit organisations and charities. This will help employers keep people on their payroll and help Canadians keep their jobs.
- Provide increased flexibility to lenders to defer mortgage payments on homeowner government-insured mortgage loans to borrowers who may be experiencing financial difficulties related to the outbreak. Insurers will permit lenders to allow payment deferral beginning immediately.
In addition, to provide targeted support for vulnerable groups, the Government is investing to:
- Reduce minimum withdrawals from Registered Retirement Income Funds (RRIFs) by 25 per cent for 2020 in recognition of volatile market conditions and their impact on many seniors’ retirement savings.
- Implement a six-month, interest-free, moratorium on Canada Student Loan payments for all individuals who are in the process of repaying these loans.
- Provide $305 million for a new distinctions-based Indigenous Community Support Fund, to address immediate needs in First Nations, Inuit, and Métis Nation communities.
- Support women and children fleeing violence by providing up to $50 million to women’s shelters and sexual assault centres to help with their capacity to manage or prevent an outbreak in their facilities. This includes funding for facilities in Indigenous communities.
- Provide an additional $157.5 million to address the needs of Canadians experiencing homelessness through the Reaching Home program.
Support for Businesses
In the face of an uncertain economic situation and tightening credit conditions, the Government is taking action to help affected businesses. To support Canadian businesses and help them retain their workers during this difficult time, the Government is announcing measures to:
- Allow all businesses to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after today and before September 2020. This relief would apply to tax balances due, as well as instalments, under Part I of the Income Tax Act. No interest or penalties will accumulate on these amounts during this period. This measure will result in businesses having more money available during this period.
- Increase the credit available to small, medium, and large Canadian businesses. As announced on March 13, a new Business Credit Availability Program will provide more than $10 billion of additional support to businesses experiencing cash flow challenges through the Business Development Bank of Canada and Export Development Canada. The Government is ready to provide more capital through these financial Crown corporations.
- Further expand Export Development Canada’s ability to provide support to domestic businesses.
- Provide flexibility on the Canada Account limit, to allow the Government to provide additional support to Canadian businesses, when deemed to be in the national interest, to deal with exceptional circumstances.
- Augment credit available to farmers and the agri-food sector through Farm Credit Canada.
- Launch an Insured Mortgage Purchase Program to purchase up to $50 billion of insured mortgage pools through the Canada Mortgage and Housing Corporation (CMHC). As announced on March 16, this will provide stable funding to banks and mortgage lenders and support continued lending to Canadian businesses and consumers. CMHC stands ready to further support liquidity and the stability of the financial markets through its mortgage funding programs as necessary. The Government will enable these measures by raising CMHC’s legislative limits to guarantee securities and insure mortgages by $150 billion each.
The six largest financial institutions in Canada have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges, such as pay disruption due to COVID-19, childcare disruption due to school or daycare closures, or those suffering from COVID-19. As a first step, this support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products. The Government of Canada will continue to monitor evolving economic conditions and seek greater relief measures should it be necessary.
In order to move forward with implementing these new measures needed to provide timely support for Canadians and to ensure the Government has every tool at its disposal to address potential challenges that may arise, the Government intends to introduce special legislation and seek the approval of Parliament.”
What are some of the best practices to implement for an employer in response to COVID-19?
- Implement remote access working conditions where possible;
- If working from home is not practical, consider steps that would slow the spread of COVID-19 such as staggering hours of employees to reduce interaction and rush hour transit, ensure spatial distancing (ideally 6-10 feet) between desks, and use teleconferencing or other technology for meetings as opposed to face-to-face interaction;
- Ensure the appropriate steps are being taken with respect to the cleanliness of the workplace and high traffic areas. High traffic areas and surfaces should be cleaned and disinfected with the appropriate regularity. Employers should also consider posting hand-washing signs in conspicuous places throughout the workplace to remind employees of the need to continuously wash their hands;
- Encourage employees who are feeling ill to stay home. This may be accomplished by increasing the amount of sick leave entitlements, allowing employees to use vacation as paid sick leave or amending current work from home policies;
- Implement business-related travel restrictions corresponding to the latest updates from public health authorities; and
- Communicate COVID-19 policies and procedures to employees promptly and in a manner that is accessible to all.
Should you have any further questions relative to your specific business in light of COVID-19 concerns, please contact SJO Legal. At our firm, the health and safety or our team, and our clients, remains our top priority. Please ensure that you are taking all the necessary preventative measures to help reduce the burden on our health care system and to ensure your loved ones are doing the same.
We are all in this together!