Emerging Questions Regarding Coronavirus (CO-VID-19)

Since our February 28th blog on the Coronavirus (COVID-19), we have received numerous inquiries from employers seeking guidance on their obligation to protect the safety of all employees in the workplace, without infringing on the rights of employees contractually and from a human rights perspective. This is a quickly evolving issue that is creating increasing demands on employers.

To help you navigate this complex issue, we have compiled a list of commonly asked questions we have received with answers below.

Q: Can an employer ask an employee who has recently visited Iran, China, Italy or any country that has cases of COVID-19 to self-quarantine?

A. At this time, Canadian health authorities have not issued general quarantine orders but have issued cautions about travelling to certain countries such as China, Italy, Iran, South Korea and Japan.

Under the Occupational Health and Safety Act, an employer must take reasonable steps in the circumstances to protect the health and safety of its employees. Considering this, it is reasonable to ask employees who have recently returned from a country with cases of COVID-19 to remain away from the workplace for a period of time (usually a 14-day period) until it can be determined that the employee does not exhibit signs of COVID-19.

Q: Do you have to continue to pay an employee’s salary if you ask them to self-quarantine?

A. This depends on the terms of your employment contract or collective agreement. If an employee’s employment contract or collective agreement provides for sick benefits, or short-term disability, an employee may be able to access these benefits. If an employee has exhausted all of their sick benefits, you can allow them to use vacation, floater days or other accrued lieu time. If they do not have any paid days remaining, the days do not need to be with pay.

Having said this, there is the risk that employees may file constructive dismissal claims, a human rights complaint or file a grievance asserting that they were essentially “forced” to remain off work without pay. When assessing whether to ask an employee to remain home from work, we recommend that the following be considered:

• To the extent possible, employees should be permitted to work from home and continue to receive full pay if operationally feasible
• A decision to require an employee to remain home should be based on objective criteria, such as whether the employee has recently returned from a country with a number of cases of COVID-19 or if they are displaying symptoms.

Q. Can an employer restrict employee travel?

A: Restrictions on employee’s business and personal travel to countries that have cases of COVID-19 may be permitted in order to protect the health and safety of other employees and to take reasonable precautions to avoid spreading the virus.

If it has come to your attention that an employee has returned from affected areas of China, Italy, Iran or any other country with numerous cases of COVID-19, it is reasonable to ask them to self-isolate and stay home for 14 days before returning to work.

As fears continue to spread in the workplace about COVID-19, it is important that employees are not discriminated against on the grounds of disability, perceived disability, race, ethnic origin or colour. Increasingly, we are seeing disturbing trends of racism and xenophobia as some employees have expressed concerns about working with employees that are of Asian descent. This has become so problematic that on January 28, 2020, the Ontario Human Rights Commission published a statement saying:

Discriminatory action against any persons or communities because of an association with the Wuhan novel coronavirus, perceived or otherwise, is prohibited by the Ontario Human Rights Code.

The OHRC also encouraged people to take precautions based on the most current advice from public officials. It cautioned that reactions based on stereotypes should be avoided and may be viewed as discriminatory.

Employers should also ensure that any incidents or complaints of harassment based on stereotyping and racism associated with rumours, or employees refusing to associate with certain employees because of their race or ethnic origin are promptly dealt with and investigated if necessary.

We will continue to monitor and provide updates concerning COVID-19. Stay tuned!