The novel coronavirus, COVID-19, is forcing many Ontario businesses to consider work-from-home strategies, quarantine, paid and unpaid time off for their employees, and even short term closures.
How do these measures affect the rights and obligations of employees and employers?
Employee Rights
Can I be fired if I have to miss work because of quarantine?
The short answer is yes. An employer does not need a ‘reason’ to fire an employee, and in any event, a slow-down in business due to the COVID-19 pandemic or an employee’s inability to attend work when required could lead to termination.
Under the Ontario Employment Standards Act employees who have been employed by their employer for at least two consecutive weeks are entitled to 3 unpaid sick days per calendar year. Employees are also entitled to 3 unpaid days off to care for certain family members with an illness or medical emergency.
Generally, however, an employer cannot terminate an employee without providing notice or pay in lieu of working notice (‘termination pay’) if there is no ‘just cause’ for termination. It’s unlikely that missing work due to illness would constitute ‘just cause’ and excuse the employer from providing some sort of termination and/or severance pay.
What can I do if I’m not paid for time in quarantine?
Some employers may adjust their sick-leave policies to account for longer absences due to COVID-19, in which case some time in quarantine may be paid. An employee who has worked 600 hours (equivalent to 20 weeks of work at 30 hours a week) in the previous 52 weeks can apply for Employment Insurance (EI) if there is an interruption in their earnings. EI sickness benefits could provide up to 15 weeks of financial assistance for qualified employees who get a medical certificate to show that they are unable to work for medical reasons. Employees will have to request a Record of Employment (ROE) from their employer to receive EI.
What if I just don’t want to go to work because it seems unsafe?
Under the Ontario Occupational Health and Safety Act (“OHSA”), most workers have the right to refuse to work in a workplace they have reason to believe is likely to endanger them. It’s likely that employees will be within their rights to refuse any business-related travel to affected areas while the Canadian government’s travel advisories remain in place. Employees may also be within their rights to refuse to attend the workplace if a co-worker is known to have been exposed to the virus or is being screened for the virus.
Employer Obligations
The Occupational Health and Safety Act
Under OHSA, an employer is responsible for ensuring the health and safety of their workers; employers must take every precaution reasonable in the circumstances for the protection of a worker. This can include provision of information and provision of protective devices (which will likely be relevant in the health care industry), and may include requesting employees to ‘self-isolate’ and stay home from work.
If an employee comes to work with a fever, or if an employee discloses they may have been exposed to COVID-19, an employer is likely within its rights to ask that employee to self-isolate and stay out of the workplace temporarily.
Keeping a workplace safe during the COVID-19 pandemic looks a lot like keeping it safe and clean during regular flu season. Employers should encourage everyone to:
- Stay home from work if they are sick, particularly if they have a fever;
- Wash their hands with soap and water or alcohol-based sanitizer frequently;
- Cover their mouth with their elbow or a tissue when sneezing or coughing, and not sneeze or cough into their hands;
- Keep their hands to themselves and away from their eyes, nose and mouth;
- Disinfect frequently touched surfaces like doorknobs, counters, desks, boardroom tables, computer keyboards, and cell phones; and
- If they have a fever, cough, or difficulty breathing, seek medical attention and disclose their travel history to medical professionals.
Work Refusals
Under OHSA, most workers have the right to refuse to work in a workplace they have reason to believe is likely to endanger them. If an employee refuses to attend work for fear of exposure to COVID-19, the employer’s duty to investigate the safety of the workplace may be triggered. Employers generally cannot discipline or threaten an employee for exercising their right to refuse work. It is important for employers to know the work refusal and investigation provisions of OHSA applicable to their workplace, particularly if they are in the healthcare industry.
Sick Leave Policies
Employers should remind their employees of the terms of the employer’s sick leave policy, including clarification of which circumstances and symptoms will require an employee to stay home from work. Employers may wish to consider a policy for extended leave (paid or unpaid) or accommodation for any employees who are affected by COVID-19.
Employees who require time off to care for family members with an illness or medical emergency may be entitled to 3 days of unpaid leave, and some employees will be entitled to longer unpaid leaves to care for critically ill family members. Employers should ensure that their Sick Leave Policies guarantee their employees’ entitlements under the Employment Standards Act.
The Ontario Human Rights Code
If employers are making decisions regarding self-isolation and quarantine based on an employee’s recent travel history, employers must be conscious of their obligations under the Ontario Human Rights Code to ensure employees are not subject to discrimination in the workplace because of race, ancestry, place of origin, colour, ethnic origin, or citizenship. For example, a requirement that employees returning from travel in Asia self-isolate and work from home, but employees returning from travel in Europe are not subject to the same measures, could be difficult to justify.
Employers should also be aware of their duty to accommodate employees up to the point of undue hardship. Employees who are particularly vulnerable to contracting COVID-19 because of pre-existing conditions, illnesses or disabilities may require accommodation – such as permission to work from home – even if they have not contracted COVID-19.
Contact Minken Employment Lawyers at 905-477-7011 or contact@minken.com for further information about your rights as an employee and your obligations as an employer under employment standards, human rights, occupational health and safety, workers compensation and privacy legislation.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
For more information please download the Employer’s Guide to COVID-19 & the Workplace.
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