The Ontario Human Rights Commission (OHRC) has developed a series of questions and answers for understanding the rights and responsibilities and obligations of employers and employees during the COVID-19 pandemic. It covers numerous queries on various workplace aspects which we’ve received from employers, over the past few weeks – questions like:
- Is it illegal for employers to terminate employees if they can’t work because of COVID-19?
- Can employers lay off employees if there is no work to do because of COVID-19? Do employer still have to pay the employee in question?
- Can employers refuse to let (an) employee work because of COVID-19?
- Do employers have to accommodate employees if they test positive or if they become sick because of COVID-19?
- Can employers insist that the employee work despite the current situation with COVID-19?
- Can an employee refuse to work if they think the workplace is unsafe because of COVID-19?
What are an employer’s health and safety obligations in the workplace?
Employers normally have obligations under provincial occupational health and safety legislation to ensure the workplace meets certain health and safety requirements and to report injuries which occur in the workplace. In light of COVID-19 it is important to communicate, and promote best practices to help keep your employees healthy and your organization running. And while employers may need to take extra precautions in the workplace (depending on environment) the same, healthy habits practiced at home and in ones personal life to protect friends and family also apply to the workplace.
Simple functional workplace aspects like:
- Sharing accurate information with employees.
- Informing and reminding employees about the signs and symptoms of COVID-19.
- Prevention techniques including workplace hygiene etiquette, hand washing with soap for 20 seconds, etc.
- Maintaining at least one-metre distance between staff.
- Coughing and sneezing into a facial tissue and if none are available using your elbow or shoulder.
- Throwing away used facial tissues immediately and other workplace sanitary etiquette.
- Avoiding touching ones face, especially the eyes, nose, and mouth.
- Provision of face masks or latex gloves as needed.
- Where your workplace keeps hand sanitizers, antibacterial wipes, and facial tissues etc.
- Providing information on when and where to seek medical care at work.
- Company sick leave policy, work from home policies.
- Any temporary policy changes because of COVID-19.
What about employer’s health and safety obligations to employees working from home?
With an increasing number of employees working remotely in light of COVID-19, employer obligations in this regard are more difficult to ascertain due to obvious differences in private residential styles. However, employers should not lose sight of these obligations and should provide employees with a recommended checklist of best practices to employ in their respective work from home environment.
Telecommuting poses unique and significant challenges to employers who are statutorily required to take “every precaution reasonable in the circumstances” (under Ontario’s Occupational Health and Safety Act (the “OHSA”)) to ensure that their workplaces are safe. However, most employers are often in the dark regarding the rights and obligations of telecommuters. It also doesn’t help that at present, the law regarding telecommuting appears to be significantly underdeveloped and, in some respects, contradictory.
Section 1 of the OHSA contains the following broad and inclusive definition of “workplace”: “workplace” means any land, premises, location or thing at, upon, in or near which a worker works. So at face value, the OHSA’s inclusive definition of “workplace” would appear to include a home office where a “worker” is performing “work”.
However, Section 3(1) of the OHSA goes on to state: Private residences - 3 (1) This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.
In fact, the Ontario MOL makes no mention of telecommuting or working from a home/remote office in circumstances other than construction work. Having said that, there are some guiding questions that employers can utilize to assess whether they are protecting the health and safety of their telecommuting employees. These guiding questions include:
- How will an employer discharge with its obligation to inspect a telecommuter’s workplace?
- How will an employer discharge its obligation to supervise an employee who is working remotely?
- What right does an employer have to investigate an incident, injury or illness that occurs or arises at a telecommuter’s home?
- Is a telecommuter’s “workplace” limited to an employee’s home office, or does it include the entire home?
From a “best practice” perspective, employers should aim to develop clear policies that will allow them to answer the above questions un ambiguously. As with any workplace policy, “telecommuting” policies should be reasonable and clearly communicated to employees with adequate notice. Adopting this “best practice” approach will assist employers in meeting the “due diligence” standard, and will also help to protect employers in light of the uncertain (and developing) area of health and safety law as it pertains to telecommuters.
Some provincial occupational health and safety regulators have developed guidance to assist employers in such circumstances. WorkSafeBC has recommended that employers ensure they have a health and safety policy for working from home which, at a minimum, requires employees to conduct an assessment of their workplace and report any hazards to their manager.
In conjunction with the above four questions, employers can consider these seven best practices to maximize telecommuting potential and create a safe and successful off-site arrangement:
- Require that the telecommuter will designate “office space” at their home as a work location, and ensure that it is free from all hazards, is safe and healthful. The telecommuter will maintain safe, organized working conditions at all times and will maintain safe working conditions and practice appropriate safety habits at all times (Expand as necessary).
- State that the telecommuter’s job responsibilities will not change. The telecommuter’s job responsibilities will not change due to the telecommuting arrangement, except as may be specifically outlined and approved in his/her telecommuting agreement.
- Clearly state the company’s expectation for telecommuters pertaining to their responsibilities & productivity. (e.g., the telecommuter must perform all duties of his or her current role in a manner satisfactory to his or her manager; be available during the company’s regular hours (and define those hours etc.)
- State that the telecommuter will continue to be subject to all company policies. The telecommuter will continue to be subject to all company policies and procedures during the term of the telecommuting agreement.
- Communicate with telecommuters early and often. ABC: Always Be Communicating. Even if it means sending an email at a time when your colleagues may be asleep. Set company-wide guidelines regarding response times, shared calendars and documents, and preferred communication methods for various situations. But also urge employees to stay connected as they see fit. A virtual open door platform like Slack where someone can present an idea, double-check a fact, or even ask a “trivial” question leads to greater team engagement, improved accuracy, and will result in fewer unwanted surprises.
- Outline that the telecommuting agreement is voluntary and does not create an entitlement to a continued telecommuting arrangement. If the agreement is terminated, the company will generally provide reasonable advance written notice to the telecommuter to give the telecommuter time to transition back to the primary workplace.
- State that the agreement to enter into a telecommuting arrangement is understood to be a benefit available to qualifying employees. It is not a right owed to any employees, nor an obligation owed by the company. The terms of the Agreement may be revised by the company at its discretion at any time during the term of the agreement.
Ultimately, both employers and employees need to realize that telecommuting arrangements involve a leap of faith. Let remote workers know how they can strengthen trust through actions such as keeping their word, participating ion online forums and tools, asking for help when needed, and consistently delivering quality work. In return, trust can be reciprocate by giving appropriate credit, asking for input, and refraining from micromanagement.
Employee with a Positive Diagnosis or Symptoms
An employer’s approach and their obligations to employees upon receiving information relating to a diagnosis of or exposure to COVID-19 will depend on the nature of information being reported by the employee, as well as the nature of the workplace. Employers should take a cautious approach, which respects employee privacy rights when considering issues such as disclosure to other employees, office closures, directions to work remotely, etc.
If an employer learns that an employee is experiencing flu-like symptoms or has been in contact with an individual experiencing flu-like symptoms, or has actually tested positive for COVID-19 or has been in close contact with an individual who has received such a positive diagnosis, it should consider taking the following steps:
- Suggest that the employee seek medical advice right away. (If they haven’t done so already).
- Advise the employee in question not to attend the workplace until they have self-isolated for the 14 day period and have been cleared to do attend work by a medical professional.
- Determine, in consultation with the employee if possible, what other employees may have been in contact with him or her.
- Notify those employees that a “co-worker” is experiencing flu-like symptoms or has received, or was in close contact with an individual who received, a positive COVID-19 diagnosis and require those employees not to report to work and to self-isolate for at least 14 days from their last contact with the relevant employee.
- Consider what other workplace measures may be appropriate in the circumstances, having regard for the workplace setting and the information that was disclosed. (Example: A deep clean and disinfection protocol to be implemented in areas that the employee with positive diagnosis frequented, arranging for additional regular cleaning all high touch services, asking an entire floor of an office to work remotely, or even temporarily closing the office in its entirety etc.
Although the employer themselves does not have an obligation to report the issue to the Public Health Agency of Canada, if an employee reports experiencing symptoms of the virus, it should encourage the employee to do so depending on the circumstance.
Can employers take their employees’ temperatures prior to permitting them entry into the workplace?
Employers are increasingly considering asking employees to undergo temperature checks prior to being permitted to enter workplaces. Human rights and privacy legislation across Canada places restrictions on an employer’s ability to require medical examinations or health testing. Unless the examination or testing is reasonably required to assess the employee’s ability to work, compulsory testing of employees through temperature checks normally would not be permitted. However, occupational health and safety legislation requires employers to take reasonable care to ensure a safe and healthy work environment.
The OHRC’s policy position is that medical assessments to verify or determine an employee’s fitness to perform on the job duties may be permissible in these circumstances under the Code.
However, information on medical tests may have an adverse impact on employees with other disabilities. Employers should only get information from medical testing that is reasonably necessary to the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability. So taking employee temperatures may be reasonable under current circumstances and necessary to meet an employer’s occupational health and safety obligations.
On the other hand, many people with COVID-19 do not present with a fever, such that temperature checks may not actually be effective at screening employees with COVID-19. Employers must balance competing Human Rights and legal considerations before deciding whether to implement employee temperature checks. Employers who decide to take employee temperatures should, among other things, do so in case of a defined Bona-Fide Occupational Requirement in a minimally invasive manner that respects employee dignity and privacy.
An evolving situation
As the COVID-19 situation continues to evolve, the information outlined herein may be revised or be subject to change. We also realize that each unique workplace may have its own challenges and requirements We therefore encourage you to call and speak with the Beneplan HR consultant about your own specific issue, at 1 800 387 1670 ext. 268 or via email at email@example.comWe also strongly recommend that employers seek the most up to date information as necessary by consulting Public Health and/or government websites in their own jurisdiction or seek legal advice as appropriate.