School's Out - An Update on Managing the Impact of COVID-19 on Workplaces
COVID-19 continues to have an immense, wide-ranging and rapidly evolving impact on Canadian workplaces. With the landscape shifting by the hour, employers are faced with a number of challenges in respect of the safe management of their workforce as well as business continuity.
We have summarized below our thoughts on critical employment questions our clients have been asking us. We have also included a quick reference list of key contacts and information sources. We have also recently delivered a cross-departmental Webinar regarding COVID-19.
We recognize that change is happening in real-time. Accordingly, our National Labour & Employment Group is available to assist clients on a 24/7 basis. If you need assistance, please reach out to any member of our team whenever you need to.
Can an employer restrict employees from travelling or ask them where they are going?
- Employers have a legal duty to take all reasonable precautions to protect the health and safety of its workers under applicable occupational health and safety legislation. To that end, employers are entitled to implement travel restrictions and even bans, particularly where such travel is deemed non-essential and to regions described as “affected areas” by public health authorities. Employers should have a process in place to approve and monitor business travel to any destination. That way, in the event that the high risk country list changes while the employee is travelling, the employer can implement appropriate measures when the employee returns.
- Employers cannot ban personal travel. Employers may require employees to disclose personal travel information, such as dates and locations of travel (including layovers that may create risk). While some employers have opted to require such disclosure only for personal travel to or through affected areas, given the fluidity of this situation, tracking employee travel will allow the employer to monitor whether that travel destination becomes an affected area while the employee is away. Where possible, employers should maintain a channel of communication with employees who are travelling.
- If an employee travels to an affected area, employers may require them to remain at home and self-isolate for 14 days on return (or other period recommended by public health authorities), whether they are symptomatic or asymptomatic. Employees should be directed to immediately advise the employer and the applicable local public health authority if the employee develops symptoms of COVID-19 during that period. If the employee remain asymptomatic at the end of the self-isolation period, the employee should generally be clear to return to work.
- Employers should inform employees of their policy so that employees can make informed decisions about their personal travel. Employers should work with their EAP provider to support employees who are required to self-isolate and advise employees of sick leave and other benefits that may be available.
What do we do if we find out that an employee may have COVID-19? What information can we share with the rest of the employees?
- If an employer is advised that an employee has taken a test for COVID-19 and is awaiting the results, they should contact the applicable public health authority to seek advice and direction regarding recommendations to contain the spread of COVID-19 in the workplace, which may include self-isolation of the affected employee.
- If the test is ultimately positive (i.e. a confirmed case of COVID-19), the employer should work with the applicable public health authority to track the employee’s contact with other employees and to develop a plan for a response.
- At this initial stage, the employer should only collect the personal information that is necessary to fulfill its notification and reporting obligations. At the same time the collection occurs, the employer should request that the affected employee consent to the use and disclosure of their personal information for the purposes of: (1) notifying individuals who may have been exposed to COVID-19; and (2) reporting the case of COVID-19 to the applicable government institution(s). Once the information has been collected, the employer must ensure that it is protected by adequate security safeguards (i.e. stored in a secured location). An employer should only use and disclose collected personal information on a “need to know” basis internally, or as required by public health officials. If the employee does not consent to the use and disclosure of their information, the employer may be able to rely on the consent exceptions under applicable legislation – legal advice on that point is highly recommended before any disclosure is made.
When should employers be telling employees to remain at home and self-isolate?
- When contemplating self-isolation protocols, employers should consult the latest updates from public health authorities at the federal, provincial and municipal level, and should take steps consistent with their recommendations to contain the spread of COVID-19 in the workplace.
- Public health authorities currently recommend self-isolation if an employee (i) has a confirmed case of COVID-19; (ii) has travelled to a designated affected area in the last 14 days, (iii) is exhibiting symptoms of COVID-19; or (iv) was in direct contact with someone who has a confirmed case of COVID-19. In these cases, employees should be prevented from attending the workplace, directed to remain at home and encouraged to seek medical treatment and contact their local public health authority if they develop symptoms of COVID-19.
- Such employees should not be permitted to return to work at the end of a self-isolation period unless they have obtained medical documentation clearing them to return to work.
- Self-reporting should be encouraged. Employees should not be disciplined if they self-report and refrain from attending at the workplace for these reasons. Employers should clearly communicate this to employees.
Do employers have an obligation to pay employees during self-isolation?
- If an employee does not have symptoms and:
- works remotely during a self-isolation period directed by their employer (e.g. because they have recently returned from an affected area), they should continue to be paid their regular wages (which could be pro-rated in appropriate circumstances if the employee is not working their full regular hours).
- cannot work remotely during a self-isolation period directed by their employer, the employer may be required to treat the self-isolation period as a temporary layoff. While the Federal Government has signalled that it will extend Employment Insurance benefits in this situation, it is still under review and as such, remains a somewhat unpredictable option. Employers should note that:
- where a temporary layoff is expressly permitted in a non-union employee’s employment agreement, the temporary layoff can be unpaid;
- where a temporary layoff is not expressly permitted in a non-union employee’s employment agreement, the employer may be required to pay the employee their regular wages during the temporary layoff in order to avoid the risk of a constructive dismissal claim; and
- in unionized workplaces, the employer should comply with collective agreement provisions regarding temporary layoffs.
- If an employee has symptoms and is directed by the employer or a public health authority to self-isolate, the employee may be eligible for sick leave benefits (if the employer provides such benefits) or to sick benefits under the Employment Insurance Act.
- Employers should review vacation policies to determine whether they have the right to unilaterally schedule vacation days and review the various unpaid statutory leave of absence obligations under applicable provincial and federal employment standards legislation, as those may apply to COVID-19 related absences.
What about school closures and accommodation obligations?
- In Ontario, the provincial government’s decision to close all public schools until April 5, 2020 will add a layer of challenge for employers as it will bring childcare implications for many employees. We expect other provinces may follow suit. Employers affected by this situation need to consider their obligations in respect of family status accommodation under applicable human rights legislation as well as the various statutory leaves of absence provided for by provincial and federal employment standards legislation that may impact parents in their workforce.
Quick Reference Guide
Government Websites. It is important for employers to be prepared to respond quickly as matters surrounding COVID-19 continue to develop. Being prepared means being informed and the following government websites are regularly being populated with information regarding COVID-19:
- Government of Canada (link)
- Government of Ontario (link)
- Government of Québec (link)
- Government of Alberta (link)
- Government of British Columbia (link)
Public Health Resources. Employers must rely upon the latest updates and recommendations regarding the COVID-19 outbreak from public health authorities at the federal, provincial and municipal level. Businesses should use this information to take steps consistent with the government’s recommendations to combat the risk of exposure to COVID-19 in their workplaces. Links to key resources are as follows:
- Public Health Agency of Canada (link)
- Public Health Ontario (link)
- Toronto Public Health (link)
- Santé Québec (link)
- Santé Montréal (link)
- Alberta Health Services (link)
- Calgary Emergency Management Agency (link)
- BC Centre for Disease Control (link)
- Vancouver Coastal Health (link)
Employment Insurance Benefits. Link to Service Canada’s website.
Travel Advisories. The Government of Canada is regularly updating its Travel Advice and Advisories page. Moreover, the Government of Canada has also been actively maintain travel health notices for certain countries regarding COVID-19. The countries with active travel health notices for COVID-19 include: China; France; Germany; Hong Kong; Iran; Italy; Japan; Singapore; South Korea; and Spain. More information on the active travel health notices.
Other Information. Other information that may be of value includes the following: