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November 12, 2009

H1N1 in the Workplace

Authors Malcolm MacKillop and Hendrik Nieuwland

Flu season is upon us. In late October, Health Canada reported an increase in Influenza A H1N1 (“H1N1”) cases across the country. Daily, the media reports on the spread of H1N1, the roll out of the H1N1 vaccine and the potential for vaccine shortages. Recent deaths of otherwise healthy children from H1N1 have prompted heightened awareness and fear of the disease. As a result of increased instances of H1N1, more employers will be dealing with H1N1 and fear of H1N1 amongst employees. In order to be prepared, employers should be aware of their legal obligations in managing H1N1 in the workplace.

Before reviewing the legal landscape, a few basic facts about H1N1 and the associated risks may be of assistance. H1N1 is a respiratory disease that originated with swine influenza, a disease affecting pigs. In rare occasions swine influenza can infect humans. The current strand of swine influenza, H1N1, is of particular concern because it has mutated to allow for human to human transmission. In most individuals, symptoms of H1N1 are similar to those of the seasonal flu. Health Canada reports that the majority of individuals affected with the illness experience regular flu symptoms and recover in about one week; however, in rare cases H1N1 can have more serious consequences including death.

A vaccine against H1N1 became available to Ontarians at the end of October, but higher than anticipated demand for the vaccine is causing shortages. Currently, Ontario plans to administer the vaccine only to those in the following high risk groups: children over six months but under five years of age, health-care workers, caregivers for those who are vulnerable and unable to get the vaccine, people under 65 with pre-existing health conditions, and those who live in remote or isolated communities. The vaccine shortage is expected to be temporary.

Given the recent increase in reported cases of H1N1, employers should be up to date on their legal obligations in the event of an outbreak of H1N1 in the workplace. Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers have the obligation to maintain a safe and healthy workplace for employees and must take every reasonable precaution to protect employees. Accordingly, employers are required to take all reasonable steps to protect employees from H1N1 in the workplace. Employers may wish to consider the following measures to prevent, or control the spread of H1N1 in the workplace.

• Remind employees to wash hands frequently and consider distributing hand sanitizer and posting hand washing instructions in the workplace.
• Encourage employees to voluntarily get vaccinated against H1N1. While employers can not require employees to get the vaccine, they can advise employees of the availability and benefits of the vaccine and allow employees to take time off work to get the vaccine.
• Consider suitable creative measures to prevent the spread of the disease such as allowing employees to work from home; holding conference calls instead of meetings; and allowing employees to work flexible hours in order to avoid public transportation in peak times. • Advise employees to remain away from the workplace if they are exhibiting H1N1 symptoms.
• Communicate with employees regarding H1N1. Provide up to date information to employees about the disease and relevant workplace policies such a sick leave and working from home. Consider appointing one person, or a team of people, to coordinate communication.

Despite an employer taking all reasonable measures to prevent H1N1 from entering the workplace, outbreaks may occur and result in employees being absent from work. The Ontario Employment Standards Act, 2000 (“ESA”) accords employees, whose employer regularly employs 50 or more employees, the right to 10 unpaid days of personal emergency leave per calendar year. Personal emergency leave may be used in the event of personal illness or the illness of certain family members. An employer may require that an employee provide evidence of the situation necessitating the leave. However, in many cases an employer’s policy on sick leave and benefits exceeds the minimum requirement under the ESA. In those cases the greater benefit offered by the employer replaces the legislative minimum.

In preparation for potential employee absences due to H1N1, employers should review and communicate to employees all relevant policies regarding the availability of sick leave and benefits. Employers may wish to encourage employees who become ill to remain at home by implementing pandemic specific, non-punitive sick leave policies such as offering paid leave that does not reduce an employee’s regular entitlements. Where sick leave benefits are unavailable or have been exhausted, employees who experience reduced weekly earnings of at least 40% as a result of an absence from work due to illness or quarantine are eligible for employment insurance benefits providing they have accumulated sufficient insurable hours.

While rarely available, employers should be aware of the existence of declared emergency leave. In order for declared emergency leave to apply, H1N1 must be declared an emergency under the Emergency Management and Civil Protection Act by either the head of a municipal council or by the premier. In the event that H1N1 were declared an emergency, employees unable to perform their duties due to H1N1 (including a case where an employee must be absent to care for a family member) would be entitled to take a leave of absence without pay. In order to take such a leave of absence, the employee would have to advise the employer of his intention to take emergency leave, and provide reasonable evidence of the circumstances requiring the employee to take the leave.

Employers should require an employee infected with H1N1 to remain out of the workplace. However, there are some privacy and human rights pitfalls that employers managing employees with H1N1 must be careful to avoid. Federal and provincial human rights legislation prohibits discrimination on the basis of disability or handicap, which can include diseases. Employers should be aware that human rights protections could extend to persons who have or who are perceived to have H1N1. Employers should also be careful to respect an employee’s privacy. Employees can generally not be required to disclose information regarding the nature of their illness. Even if an employee is exhibiting the symptoms of H1N1, employers should avoid asking the employee specific questions about the nature of their illness. However, employers can request that the employee obtain medical information indicating that he or she is fit to work.

Employers should also recognize that under the OHSA employees have the right to refuse work if a condition in their workplace is likely to endanger their health and safety. Employees who are exposed to H1N1 in the workplace may wish to exercise their right to refuse work. In the event that an employee refuses work, the OHSA requires that a specific procedure be followed. Employers may not discipline an employee exercising his right to refuse unsafe work. Rather, employers should immediately investigate any work refusal. If the employer fails to resolve the situation directly with the employee a Ministry of Labour Inspector should be notified.

Employers who are covered by Workplace Safety and Insurance should be aware of the possibility that H1N1 could result in increased Workplace Safety and Insurance Board claims. The Workplace Safety and Insurance Act, 1997 provides compensation for “personal injury or illness arising out of and in the course of employment”. A worker infected with H1N1 in the course of employment may be eligible for benefits. For example, WSIB claims were made by health care workers during the Severe Acute Respiratory Syndrome (SARS) crisis in 2003. Finally, we recommend that employers monitor the spread of H1N1 and the availability of the vaccine. Further information is available from Health Canada at: If you require more information regarding employers’ legal obligations or assistance in managing H1N1 in the workplace, any of our firm’s lawyers will be pleased to assist you.

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