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February 7, 2020

Coronavirus: Best Practices for Employers to Ensure a Healthy Workplace

Authors Hendrik Nieuwland and Domenica Moran

With the spread of the Novel Coronavirus (2019-nCoV or “Coronavirus”), employers should refresh their knowledge of their obligations towards their employees and take steps to ensure they foster a healthy workplace environment.

Employee Absence

Employers have an obligation to ensure a safe and healthy workplace for their employees.  If employers have a reasonable basis to believe an employee may have Coronavirus, for instance, if an employee or one of their family members have recently visited a high-risk area for Coronavirus and/or they exhibit flu-like symptoms such as fever, coughing and shortness of breath, employers can ask that employee to stay home until it can be determined that they do not have Coronavirus and their health improves.   

When asking an employee to stay home, employers should consider arrangements that would allow their employees to work from home if it is practical to do so.  Further, employers should consider the implications of choosing not to pay sick employees while they remain at home.  Providing employees with unpaid leaves may encourage sick employees to come into work and increase the potential of spreading their illness to the rest of the workforce. 

Employers should also consider postponing an employee’s business-related travel to high-risk areas for Coronavirus until it is safer to do so.  Employers should ensure that employees who are choosing to travel to areas at high-risk for Coronavirus for personal purposes understand the possible risks such travel poses to themselves and to others.

Employment Standards

In the absence of a greater contractual right or benefit, all employees subject to the Ontario Employment Standards Act, 2000 (the “ESA”) are entitled to minimum employment standards, including unpaid leaves of absences that eligible employees can use if they are sick and need to stay home. 

Ill employees who have at least two (2) weeks of service with an employer can take up to three (3) unpaid days for sick leave under the ESA.  These employees may also be able to take up to three (3) unpaid days of family responsibility leave to care for an ill family member.

While Coronavirus has not caused any fatalities in Canada, it may result in significant medical issues.  For more serious illnesses, employees may be able to take an unpaid family caregiver leave for up to eight (8) weeks to care for a family member with a serious medical condition.  Employees may also be able to take an unpaid family medical leave of absence for up to 28 weeks to care for a family member who has a serious medical condition and a serious risk of death. 

Finally, an unpaid critical illness leave is available to employees who have worked for their employers for at least six (6) months.  These employees can take this leave to care for a critically ill minor child who is a family member for up to 37 weeks, or to care for a critically ill adult family member for up to 17 weeks.

Sick Leave Benefits

Employers may have sick leave or short-term disability policies in place that provide greater benefits to employees than the minimum standards provided under the ESA.  Such policies may allow eligible employees to claim benefits when they are ill and need to stay home.  Under certain circumstances, employees may also be able to use their vacation time or any “floater days” to cover their absence. 

Employees may also be eligible for employment insurance benefits pursuant to the Employment Insurance Act.  Employees may be eligible for employment insurance sickness benefits where their regular weekly earnings have decreased by at least 40% due to illness or injury and they have accrued enough insurable hours. 

Further, worker’s compensation benefits may also be available to sick employees if they contract an illness due to their work environment.  The Ontario Workplace Safety and Insurance Act, 1997 compensates employees who sustain personal injury or illness arising out of and in the course of employment, and where employees suffer from and are impaired by an occupational disease that occurs due to the nature of the employees’ work.

Work Refusals

Employers should be aware that employees who believe that a condition in the workplace is likely to endanger their health or safety may refuse to work pursuant to the Ontario Occupational Health and Safety Act (“OHSA”).  This situation may arise if an employee with flu-like symptoms refuses to stay home, and other employees refuse to work with them.  Employers should know their duties under the OHSA and ensure they provide a safe working environment. 

Plan Ahead

As the full impact of the Coronavirus upon Canadian workplaces remains to be seen, employers are encouraged to have a plan in place to deal with its potential ramifications.  Employers should ensure their policies on various sick and caregiver leaves are clearly communicated to their employees.  Employers should also encourage sick employees to stay home, and to inform their employees on the risks of spreading illness.

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