On January 31, 2020, the World Health Organization declared a global health emergency as a result of the spread of coronavirus (COVID-19). On March 12, 2020, the COVID-19 outbreak was qualified as a pandemic. One hopes that the contagion will be successfully controlled, but it is prudent to make contingency plans to prepare for a worse outcome.
One realm where such planning is important is employment. Businesses should think about their obligations to the wellbeing of their employees and customers and plan the policies in advance so they can implement them if the crisis worsens.
Employees will want to know about their rights and what they can expect if they are worried about going to work. This is an area where black letter law may not be the best guide to policy. Employers should consider the advantages of providing a level of support that is better than the minimum required by law.
Does the employer have to provide the employee with leave?
The minimum standard required by Ontario’s Employment Standards Act is minimal indeed. If the Medical Officer of Health orders employees to stay home because of a communicable disease, the employer is obligated to provide only unpaid emergency leave.
What happens if an employee refuses to go to work because of a fear of COVID-19?
If the employee refuses to go to work in the absence of an order from the Medical Officer of Health, this could be considered “willful neglect of duty.” Under the Employment Standards Act, wilful neglect entitles an employer to terminate an employee without any financial compensation. However, “willful neglect” is not actually defined in the statute. It must be decided in each case based on the particular facts of the situation. Employees may also have recourse to protection under the Occupational Health and Safety Act and the Human Rights Code and the duty to accommodate.
In a situation of mass fear about contagion, courts and tribunals might take the view that staying away from work is reasonable conduct that falls short of willful neglect. Therefore, an employer who fired an employee who is absent because of a health panic could find itself being forced to pay compensation.
How can we help stop the spread of Coronavirus?
Nobody at this point can predict how rapidly this illness will spread, or how severe it will become globally. The fact that it is a novel virus means that it will take a considerable amount of time to develop a vaccine against it (about a year, according to one estimate).
Send employees home if exhibiting coronavirus symptoms
Employers should send employees exhibiting coronavirus symptoms home. Under the Occupational Health and Safety Act, employers should “every precaution reasonable in the circumstances for the protection of a worker”.
Cancel non-essential travel
It is worth considering cancelling non-essential travel to areas affected by coronavirus. The World Health Organization publishes situation reports with the number of Coronavirus cases reported.
Many employers in the high-tech sector already have a significant number of workers who work partly or fully from a remote location. Other employers who are not in that situation may want to consider making contingency plans about how work can be reorganized to allow more people to work from home if the health crisis intensifies.
Rather than punishing employees who stay away, companies might actually encourage them to do so and pay them to work from home while the crisis persists. It would be worth determining whose presence is essential and encourage other employees to work from home. That would reduce the risk that a large proportion of the company’s workforce will become infected.
How will Toronto Authorities help businesses and workers?
On March 16, 2020, Mayor John Tory announced that a task force will quickly determine supports and stimulus required to help affected businesses and employees. The initial initiatives include:
- Extending a grace period for tax and other City of Toronto payments for businesses (payment and payment penalties) first for 30 days starting March 16.
- Protecting City employees from layoffs in March due to the cancellation of City programs. The City promised that it is committed to paying for shifts that were planned for City-run daycares, museums, and recreation centres.
- Establishing a substantial contingency fund to support businesses and affected groups.
- Facilitating entry into the EI System for those impacted by the pandemic. The City promised that it will work with companies and employees to ensure they are fully aware of how to apply for their rights under employment insurance.
- Expanding the City’s small business advisory services to help businesses as they plan to recover from impacts.
Ontario Bill Announced to Protect Workers
On March 16, the Ontario Government announced that it intends to introduce legislation that, if passed, would immediately provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures. The bill is expected to be retroactive to January 25, 2020.
In conclusion, whether it be this virus or another occurrence which causes concerns for employees or the local population en masse, it is prudent for employers to have plans for these type of large-scale events. If your organization has specific employment-related concerns involving coronavirus, we offer a free 30 minute phone consultation.