Some readers might remember the SARS outbreak of 2002. They may remember H1-N1 and various other outbreaks over the years. During the Spanish flu of 1918, all events in Kelowna with more than 10 people were cancelled.
Now it is COVID-19, Conavirus.
States of emergency are being declared. Sidewalks, parkades and grocery shelves are barren. Schools in British Columbia, Alberta and Saskatchewan are suspending classroom instruction until further notice.
B.C. courthouses are even closing and regular court operations are being suspended.
Seven people with the virus have reportedly died in BC, six of whom were connected to a particular North Vancouver care home.
Whether the hysteria matches the reality is a question that could legitimately be asked. We must protect the vulnerable and it is better to be safe than sorry. While it may be necessary to take certain steps to prevent further spread of the virus, many considerations are involved.
Basic Employment Law Principles
It is useful during this time to remember a few basic employment law concepts:
- A failure to show up at work by an employee without a legitimate explanation can give rise to questions about whether the employee has abandoned his or her position;
- An employer has obligations under occupational health and safety (OH&S) regulations to maintain a safe and healthy workplace;
- An employee has the right to refuse work which is unsafe, defined as work which “that person has reasonable cause to believe… would create an undue hazard to the health and safety of any person”;
- Upon work being refused because it is considered unsafe, the employee must immediately report the circumstances of the unsafe condition to his or her supervisor or employer, and the employer must conduct an adequate investigation and remedy any unsafe conditions or advise the employee that the report was not valid;
- Employers have obligations to take sufficient care not to jeopardize the safety of others, such as customers;
- Depending on the circumstances, unilaterally requiring an employee to be away from work without pay for a quarantine period is likely a dismissal or a constructive dismissal;
- Subject to the terms of a valid employment contract, an employee who is dismissed without just cause is entitled to receive reasonable notice of his or her dismissal or pay in lieu thereof, often referred to as severance pay;
- The availability of employment insurance in itself does not amend an employment agreement.
Whether or not you believe the mass hysteria is well founded, it is reasonable for certain employers to ask certain employees to self-isolate or quarantine for a time. Encouraging employees to self isolate or quarantine while working from home is not in itself constructive dismissal as long as the employee continues to be paid.
Depending on the circumstances, an employee who wishes to self-isolate and work from home is also likely a reasonable request.
Employers with employees who remain working should consider posting notices that encourage employees who are unwell to remain at home and that remind employees of safe cough, sneeze and hand wash techniques and social distancing expectations.
Sick Leaves and Other Workplace Leaves
Some employment contracts or workplace policies may permit employees who are unwell to take a sick leave. Employees who are unable to work for medical reasons, such as being under quarantine, may apply for up to 15 weeks of employment insurance (EI). The federal government announced that it is eliminating the waiting period for those under quarantine. This means that those eligible for EI will receive benefits for the full 14 day quarantine period.
The Minister of Health in B.C. is asking employers not to require ill employees or those who are self-isolating to provide a doctor’s note.
At the same time, employers may be able to request more information than is typical, to substantiate a covid-19 related sick leave. Employers may also be able to request more information than is typical, in order to properly assess the safety of its workplace, including the risk of contamination and transmission of covid-19. An employer may request that those who test positive for conavirus report this to the employer. To assess whether a particular employee is at risk, an employer may request information such as:
- Whether the employee has recently traveled outside Canada and if so, when and to where;
- Whether the employee has been in contact with anyone with covid-19 symptoms;
- Whether the employee has any covid-19 symptoms, and if so, whether he or she has also been in contact with any other employees or customers.
In some cases, employees with a family member who is seriously ill may be eligible for unpaid compassionate care leave or unpaid critical illness or injury leave. In some cases, employees may be entitled to take a brief unpaid family responsibility leave. These leaves are contemplated under the Employment Standards Act. Employers may agree to other approved unpaid leaves. Employers ought to be fair among employees.
Human Rights Considerations and Accommodation
Employers are required to accommodate requests from parents who are without assistance with childcare for children whose schools or daycares are closed. Accommodation is required up to the point of undue hardship.
Employers may request certain information to substantiate requests to be away from work for childcare reasons. This might include:
- The type of childcare normally accessed by the employee;
- Whether this provider is, or is contemplating, closing its facility;
- What alternative childcare arrangements the employee may be able to access, attempts made to do so, and the nature and extent of their availability.
Employers must be mindful not to make unfounded assumptions about employees based on race, colour, ancestry, place of origin, national or ethnic origin. Human rights legislation prohibits employers from discriminating in employment on such grounds. Employers are also prohibited from discriminating in employment on the basis of a disability.
Whether an indefinite and almost complete shut-down of society is necessary remains to be seen. Without extensive testing, we do not know. Little is known about this virus, and it is certainly better to be safe rather than sorry.
We can only hope that these measures are effective to stop the spread of this virus so that we can all resume our normal routines.
This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about March 20, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.