March 12, 2020
Joel Gomes

Recommended Employer Actions In A Time of COVID19

March 12, 2020
Joel Gomes

The coronavirus COVID-19 outbreak has formally been declared a pandemic by the World Health organization (WHO). Canada’s Public Health Agency (PHAC) yesterday, released a guideline on risk informed decision making for public gatherings pertaining to group or similar events.

As the number of cases continue to proliferate nationally it is extremely important for workplaces and business owners to regularly review the situation as it evolves, keep things in perspective and not be overwhelmed by sensational media reports without any objective medical or public health information. While new information on the illness caused by the virus is constantly being updated, it is an acknowledged fact that symptoms experienced by people infected are a mild fever, dry cough and difficulty breathing. The risk of serious illness is greater in vulnerable individuals, such as the elderly and those with co-morbidities (the presence of more than one chronic medical condition existing at the same time in a person) and/or weakened immune systems. There are Provincial Public Health Resources related to this, available for review if you need them.

Here are some key strategies that business owners/employers should consider immediately implementing at the workplace. Not all may apply to you, but this is a unique situation, unlike anything faced before, so reading through these points may guide some innovative thinking and spur key strategies in handling this scenario for your respective workplace. I would also warn that doing the bare minimum has its risks — definitely greater risks than if you explore and go well above what is mandatorily the minimum required. While it will be a delicate balance of maintaining business continuity and delivering on client expectations, remember that your clients themselves, and THEIR employees will probably be impacted the same way as your business has been and ultimately, no one is going to fault you for establishing the gold standard for how a situation like this should be handled.

Establish a Temporary Pandemic Handling Policy

Employers should develop and implement a temporary written policy, setting out clear guidelines on how it will handle this pandemic scenario. A well thought out and well written policy that is communicated to employees and uniformly enforced, will provide consistency and legitimacy to employer actions, serve as a reference point for employees and managers, and ensure consistency. It will also, probably help mitigate legal risks and assist in the defense of any legal challenges.

Policy documents must have an effective date and a defined period of validity. The employers own existing policies can form the basis of this document as needed. Specifically address key items like employer expectations of employees in various scenarios, the company sick day policy and options for telecommuting. Note that it may not be possible for all roles within organizations to “work from home”.

A policy may include some of the following elements:

· A requirement for employees to notify the employer if they or someone with whom they reside plans to or has recently travelled to/from an area subject to a Government of Canada travel health notice to avoid non-essential travel or to avoid all travel.

· A requirement that employees who have or suspect that they have been infected with a contagious disease, will seek appropriate medical treatment and follow the recommendations of their medical professional and public health agencies, particularly as it relates to remaining home from work, self-isolation, quarantine or other measures designed to prevent the spread of illness;

· A requirement that employees remain out of the workplace for the period of time recommended by medical professionals, and a related right of the employer to enforce that requirement for ill employees and those who have been exposed to a highly contagious communicable illness where that restriction is reasonably necessary to protect other employees.

· A requirement that employees should inform employers if they are undergoing testing for COVID-19, particularly if there has been contact with others at the workplace. Also the requirement that asks employees to inform employers if they have a sick family member at home with COVID-19.

· A statement to inform employees that some people may be at higher risk for severe illness, such as older adults or those with chronic medical conditions. A related requirement asking employees that may be vulnerable and may be at higher risk for COVID-19 health complications to inform their employer, so that an informed decision on whether additional precautions should be taken or other arrangements can be considered, if applicable.

· An overview of the companies paid and unpaid leave entitlement(s) available to employees affected by a communicable illness.

· A confirmation of the employer’s commitment to take reasonable precautions and other specifically prescribed steps required by established health and safety or other legislation and as well, directives and guidance from local public health authorities, designed to protect employees.

· A statement that since this is an evolving situation, the employer’s decision about employees affected by a contagious illness will be based on the most current available local/regional medical or public health information, including information about transmission risk, and prognosis for recovery, among other things.

· A statement on what happens if an employee refuses to work for safety reasons. This will need to be a case-by-case determination. For these issues the key considerations for employers will be occupational health and safety legislation, employment standards legislation, human rights legislation and public health guidance from local/regional public health agencies/authority. Context will be very important.

How this issue has potential to become a problem from a legal perspective is when employers overreach, create policies contrary to public health guidelines or based on speculation, act unreasonably and without any factual basis, start to stereotype or target certain employees based on race, religious background, ethnicity or place of origin, or employers focus too much on business process and business revenue and ignore their obligations to their employees.


Have or Create a Business Continuity Plan

In addition to a Temporary Pandemic Handling Policy, employers should develop a plan and associated procedures in case their local region becomes seriously affected by COVID-19 and a public health quarantine is initiated. The plan should include key strategies and implementable measures to keep the business running even if employees cannot physically come to work. This would include establishing an internal company “call tree” for communication to the entire organization, identifying key employee(s) and groups that are necessary to keep the business operating every day, planning and setting up hardware infrastructure and communications technologies to enable the identified employees to be able to work offsite or from their homes. In some cases employers may consider off-shoring some of the business activity to other partners. It is also recommended that employers ensure that their IT (information technology) and communications systems are well supported to assist with employees experiencing any difficulty with remote access systems.

Continually assess the nature of the business. It is very important to have an objective assessment of the business and any unique risk factors or considerations that may be present in the local environment. By engaging in contingency planning and preparing the workplace for the impact of an outbreak related “lockdown”, employers can at least mitigate some of the consequences of a worst case scenario.


Restrict Business Travel

In the short term, seriously consider restricting or altogether stopping business travel to certain countries or regions that have been impacted by the virus and/or areas subject to a Government of Canada health travel notice(s) to avoid non-essential travel or to avoid all travel altogether. Also consider limiting local area travel so as not to transfer potential infections form location to location — this is especially applicable to multi-location workplaces, and workplaces with outside business development and sales activities. Advise employees before travelling to take steps such as reporting their travel locations to you (their employer).

Practice social distancing - Even in local and regional areas, it's a good idea to temporarily avoid in person meetings. Instead utilize available technologies like conference calls and internet based audio (and video) conference services like WebEx and  Zoom meeting.


Self-Quarantine & Asking Employees to Stay at Home

With March Break around the corner, this is of the utmost importance. Canada’s government is also advising people returning from abroad to monitor their health for fever, cough and difficulty breathing for 14 days after they make it home. It may also be reasonable to require employees who have travelled to and returning from an affected area to self-quarantine at home and monitor for symptoms, for a period of 15 days before returning to the workplace.

Employers are within their rights to ensure that any employee who has symptoms of COVID-19 infection or been in close personal contact with someone who’s been infected is prevented from attending the workplace and possibly infecting the other employees. It is however very important to note that employers MUST make decisions on actual tangible risks and not misplaced speculation.

It is also not reasonable to require evidence that an employee has tested negative for COVID-19 before returning them to work. This is because current testing for COVID-19 is limited and currently restricted to cases meeting certain criteria. It is not widely accessible by all family physicians for employees seeking to return to work.

If an employee does not have infection symptoms, but is prevented from attending the workplace, should be paid for the time they have to take off work. Employers who refuse to compensate employees that are sent home are risking human-rights complaints or constructive dismissal lawsuits, because these employees can demonstrate they did not actually pose a safety risk.

A caution to employers is that refusing to pay employees who are not permitted to work may discourage them from reporting symptoms or seeing a doctor if they are actually sick or infected. This has grave potential to further spread COVID-19 if a local outbreak occurs.


Engage Your Union if You Have a Unionized Workplace

Employers with unionized workplaces should be mindful of their collective agreement obligations (as applicable) to consult with the union. In certain jurisdictions, employers should also be mindful of their obligations to work with health and safety committees on the development of certain health and safety initiatives.


Don’t Rewrite Your Existing Policy Manual

There no need to reinvent the wheel. Approach the situation practically. Employees who are ill and unable to work should have access to paid sick leave and/or disability benefits as per the company’s existing polices, applicable and available to all other employees.

If no paid sick leave entitlements are provided for by the employer’s existing policies, employees should be reminded of the possible availability of Employment Insurance Sickness benefits or other government benefits as eligible and if made available for this pandemic. Employers should issue an ROE (Record of Employment) for the employee, as they would normally do in this situation.

Some options for recouping lost pay may include utilizing accrued vacation time, utilizing accumulated lieu days, taking a short term sick leave if available or Short Term disability benefits. As mentioned before, employers can temporarily get creative to boost employees and their morale by offering temporary incentives for days off if an employee is sick, or is required to not attend the workplace.

Also consider and reinforce existing company policies surrounding discrimination. Specifically where an employee may discriminate against another employee on the basis of race or other prohibited grounds. Employers generally have an obligation to maintain a discrimination-free workplace. Employers must deal with any discriminatory behavior from employees promptly and firmly.


The Right To Refuse Work

Occupational Health and Safety legislation (OHSA) provides employees the right to refuse to work or to perform a task where it is likely to endanger their health or put them at risk. In this context, the phrase “Likely to endanger” is the key.

If there is a contagious disease outbreak in Canada, employees can refuse to perform their duties if it would expose them to people or situations where an infection is likely. Once an employer receives a safety-related work refusal, it is required to investigate the concern and try to determine the validity of the complaint in context to the prevailing situation. If there is NO REASONABLE CAUSE for the employee to refuse to work, the employer should inform the employee of their findings and request that they come back to work. In certain circumstances you can initiate disciplinary procedures but caution is advised in taking this course of action. Please be reasonable with your approach as this is an evolving situation which can change rapidly.

If a solution is not possible, the employer can contact provincial labour inspectors for resolution, while in the meantime the employee is permitted to maintain his or her work refusal. Employees who exercise a health and safety work refusal cannot be disciplined, threatened or dismissed.


Allow Working From Home Or Working Remotely Where Possible

Employees who have been exposed, but who are not ill, should be allowed to work remotely where possible given the nature of their duties and the available technology infrastructure. Where remote work is not possible, employers should obtain specific advice about whether leaves should be paid or unpaid to mitigate possible liability.


Employee Privacy

Employers should be mindful of employee privacy issues when communicating absences by certain affected employees to other employees in the workplace. Information should be limited to confirming that an employee is out of the workplace and their expected return to work date (only as necessary). No other private medical or health information pertaining to the absent employee should be shared or discussed among co-workers in a workplace without the employee’s consent. It may be appropriate in some cases (to mitigate and advise of public health risks) to seek that consent and develop a message that the employee is comfortable sharing with coworkers and that is carefully vetted by the employer to ensure compliance with their obligations.


Finally, about that constant reminder to “Communicate with your employees”. In uncertain times, and business continuity scenarios, it is absolutely important for employers to communicate frequently, concisely and accurately with/to employees. It is also critical to base employer actions and communications on clear evidence and reliable facts. Employers should therefore be cautious before relying on internet “facts”, media reports and other non-government or non-health authority sources. Remember, misinformation thrives during crises, and mistrust and mistakes breed in a vacuum. Keep lines of communication open and engage your employees to collectively pull through as a team during this crisis."

"Everyone can actually help change the dynamic of the curve...that #Epidemic curve & the number of people who get seriously ill & go into your health system, depends on all of us to protect those who may get more severe illness" - Dr. Teresa Tam, #Canada's Chief Public Health Officer

Reputable information and guidance sources include health and medical expert organizations such as:

· Public Health Agency of Canada (PHAC)

· Government of Canada Notice on COVID-19 & Occupational Health & Safety

· Government of Québec

· Ontario Public Health

· Toronto Public Health

· The Center For Disease Control (CDC)

· The World Health Organization (WHO)


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