Employers’ need to know obligations in face of pandemic
Tuesday, March 17, 2020 @ 11:18 AM | By Reshma Kishnani
Being aware of your obligations as employer will assist in developing a contingency plan for preparedness in the face of the evolving pandemic and the challenges it raises to public health and safety.
In order to create and implement a COVID-19 protection plan for your employees and your workplace it is important to be aware of some of your legal obligations as an employer:
1) Pursuant to the Occupational Health and Safety Act (OHSA) employers have an obligation to take every precaution reasonable in the circumstances to protect their employees. Most employees who reasonably believe a condition in the workplace is likely to endanger their health or safety can refuse to work under the OHSA. Employees should not be penalized for this in the face of the pandemic. This should be assessed on a wide scale basis for your workplace and on a case by case basis. It is critical that your contingency plan accommodate and adapt to the fluidity of the pandemic.
2) If you are a Workplace Safety & Insurance Board (WSIB) employer and an employee is infected with COVID-19 during the course of their employment, the employee may be entitled to compensation and services under the Workplace Safety and Insurance Act (WSIA). The employee would have to establish that the injury arose out of and in the course of their employment and impairment by an occupational disease that occurs due to the nature of their employment in which they were engaged. Each case related to COVID-19 would of course be assessed on a case by case basis.
3) If your employees are governed pursuant to the Employment Standards Act (ESA) they are protected by a number of unpaid job protected leave provisions: Sick leave, family responsibility leave, family caregiver leave, emergency leave, family medical leave and critical illness leave. Employees should not be discouraged or penalized in any way for exercising their rights to a leave pursuant to the ESA. In addition, if your employees have paid sick leave in their contracts of employment, they should be encouraged to use it, where appropriate.
Note: The Ontario government on March 16 announced that it is in the process of drafting legislation to protect workers and their families impacted by COVID-19. The government emphasized the importance of job security at this time and aims to put in place protections, once passed, that will be in effect as long as the virus persists. The change to the ESA will be aimed at ensuring employees have job protection if they are (i) under medical investigation, supervision or treatment for COVID-19; (ii) acting in accordance with an order under the Health Protection and Promotion Act (HPPA) (iii) in isolation or quarantine; (iv) acting in accordance with a public health information or direction; (v) directed by their employer not to work; or (v) required to provide care to a person for a reason related to COVID-19 such as school or day care closure. The changes would also make clear that an employee would not be required to provide a medical note if they take leave under these provisions. The measures would be retroactive to Jan. 25, 2020, the date that the first presumptive case was concerned. In addition to this there may be further announcements on access and eligibility to emergency assistance to support those who are impacted by COVID-19 and unable to meet their basic living expenses.
4) If your employees are eligible and qualify for employment insurance (EI) sickness benefits they may apply for the same in the event they need them to deal with self-isolation and quarantine directions from a public health officer as a result of COVID-19.
5) The Ontario Human Rights Code (OHRC) prohibits discrimination and harassment on the grounds of disability and family status among other grounds. COVID-19 is likely to be treated as a disability and employees who have contracted COVID-19 or who are perceived at risk of contracting COVID-19 are not to be treated differently beyond what is required to maintain a safe workplace. In addition, employers have a duty to accommodate employees with a disability and those who are required to take care of their family members, to a point of undue hardship, in the face of COVID-19. Determining what constitutes undue hardship is complex and dependant on several factors. Employers should seek legal advice when addressing this issue.
6) Employers should be aware of their obligations to report under the HPPA and the Personal Health Information Protection Act (PHIPA) that apply to designated individuals such as regulated health professionals, hospital administrators, laboratory operators, school principals, as well as superintendents of certain institutions. HPPA provides a medical officer of health broad powers to restrict the mobility and conduct of individuals, including directing quarantines, from which employers may take direction. In addition, employers should also keep in mind their privacy obligations under PHIPA to protect individual personal health information.
Having knowledge of the legal obligations will assist employers to develop proactive measures to address COVID-19 and the workplace. It is important for employers to protect themselves and ensure their employees are protected and supported in the workplace.
Stay tuned for part two of this series which will provide suggestions to developing a contingency plan in the face of the pandemic. Part two: Employers need plan to protect business, workplaces.
Reshma Kishnani is a litigation lawyer at Mills & Mills LLP, a full-service law firm, whose practice focuses on employment and estates matters. She can be reached at 416-682-7062 or email@example.com.
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