KPA Lawyers – March 17, 2020

This morning, Ontario’s Premier Doug Ford declared a state of emergency for the Province of Ontario due to the spread of COVID-19. Using the province’s new emergency powers, the Province announced the immediate closure of the following:

  • All facilities providing indoor recreational programs.

  • All public libraries.

  • All private schools as defined in the Education Act.

  • All licensed child care centres, such as daycares.

  • All bars and restaurants, except to the extent that such facilities provide takeout food and delivery.

  • All theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies.

  • Concert venues

Responsibilities of Employers during closure

If you are an employer who operates one of these businesses, you have certain responsibilities to your employees in light of these closures. Your responsibilities include:

1. Informing your employees about the closures.

2. Allowing employees to retrieve any critical personal items that the employee has left at the worksite.

Regarding whether or not you must continue to pay your employees during this closure period – the answer depends first on the terms of the employment contract. In the vast majority of cases, and if there is no employment in contract in place, you do not need to continue to pay your employees if they cannot work because of the declared emergency. If you are no longer paying your employees, you must issue their Records of Employment (“ROEs”) within 5 business days of operations ceasing. If you are uncertain if you must issue a Record of Employment, KPA Lawyers remains open for telephone consultations.

Responsibilities of Employers Not Closing

If you are an employer who is not affected by the closures and remains open, your responsibilities during an infectious outbreak include:

1. managing health and safety in the workplace and taking reasonable precautions to protect your employees;                                                                                                                                                                  2. allowing employees affected by the disease to take a leave of absence;                                                      3. providing accommodation to employees who become disabled; and                                                        4. respecting an employee’s continuing right to privacy

1. Occupational Health and Safety During An Infectious Disease Outbreak

An Employer has a duty to provide a safe workplace under the Ontario Occupational Health and Safety Act (“OHSA”). This includes taking reasonable and responsible measures to protect employees from a disease. There are severe consequences for an employer’s failure to comply with the OHSA, which can include the imposition of fines or provincial offence charges. However, don’t let this alarm you. As an employer, you still have rights, which we outline in detail below.

It is important to note that the OHSA, while employees are entitled to refuse work that they believe is likely to endanger their health or safety, the reason for the refusal must have a reasonable basis. To be entitled to refuse to do work, an employee must have reasonable cause to believethat the work they are performing is likely to endanger the employee. In order to be entitled to refuse to attend the workplace at all, the employee must have a reasonable cause to believe that the workplace itself poses a danger to the employee. This reasonable basis rule dictates that anxiety or fear around COVID-19 alone are likely not enough to refuse to come to work.This may change as the situation develops, and the employer must also have a care for any other genuine mental health issues which may interact with this rule.

If an employee refuses to come to work solely because they fear for their safety in the workplace, you as an employer must investigate the risk the employee has identified. This investigation must be done in the presence of your health and safety representative or joint health and safety committee member. You must also follow the usual work refusal protocols, such as documenting the complaint, investigation procedures, and conclusion reached, among other things. What a ‘reasonable investigation’ is depends on the circumstances – in a case like this, with a viral outbreak, assessing the risk requires a careful assessment of the genuine risk operating poses to your employees. Only after an employer has conducted this investigation should an employer make a response.

Preventative Measures Employers Should Take

On the flip side, taking reasonable precautions. This may include sending employees home because an employee is showing symptoms or because of a potential exposure. You must keep the workplace safe for employees and allowing employees who are ill or may become ill with COVID-19 to be present at the workplace would expose you to liability for failing to provide a safe workplace. As a note, if you send an employee home because they have taken ill or because they have been advised by a medical professional to self-isolate, an employer cannot terminate their employment simply because the employee is absent from or unable to work. The provincial government will soon be passing legislation to protect employees who are on leave or in isolation for COVID-19. You may also be required to accommodate them, such as by allowing them to work from home. More on that below.

While public panic is rising, as an employer, it is your responsibility to assess the risk to your employees and take precautions accordingly. Ask yourself – what is the risk of exposure to my employees? What measures must I take to keep them safe?

In today’s world, a daily risk assessment is prudent. It may also be prudent to begin planning for if things get worse. What is your plan in case your office building must close? What is your plan in case public transit closes? Better to know now than to be scrambling later.

Just as important as assessing the risk and taking precautions, it is also important to communicate with your employees. Once you’ve conducted your daily risk assessment, communicate to your employees what measures you are taking to keep them safe along with your plan for continued operations. It may be prudent to also communicate this daily as things evolve.

2. Leaves of Absences (Sick and Family Illness Leave)

An employee is permitted to take a leave of absence for their own illness or for an illness that is being experienced by an immediate family member. When an employee is taking one of these leaves they cannot be terminated from their employment. However, these leaves are unpaid leaves. As before, if an employee is on an unpaid leave, you as an employer should provide them with their records of employment within 5 days of their leave commencing.

3. Human Rights, Accommodating Disabled Employee

Discrimination prohibited. Employees in Ontario have a right to be free from discrimination in the workplace based on disability or a perceived disability. Employers should be cautious about making decisions about specific employees and should continue making decision on items such as promotions, training opportunities, and transfers between roles without reference to any illness or disability.

Accommodation may be required. An employee continues to have a right to be accommodated under the Human Rights Code if they have identified a disability. Disability in this case can also mean a temporary disability. Being diagnosed with COVID-19 may qualify as a temporary disability. Similarly, being placed in isolation or quarantine by a medical professional may qualify as a temporary disability.

In cases where an employee has been diagnosed with COVID-19 or is otherwise under orders from a medical professional to self-isolate or isolate, if an employer can accommodate remote work, it would be prudent to do so. If an employee cannot work remotely, then an employer should assist that employee by providing information about private short-term disability insurance benefit or providing a prompt Record of Employment to assist with obtaining government benefits.

In cases where an employee has not been diagnosed or directed by a medical profession to self-isolate, and in cases where the workplace is determined to be safe for work, but an employee refuses to attend at the workplace, the employer is not required to accommodate an absence from the workplace.

In cases where an employee has a known mental health condition, such as anxiety, depression, etc., and has experienced worsening mental health as a result of the current environment, you as an employer may be required to accommodate this employee by providing shortened working hours, protective equipment, and/or establishing work from home protocols. If an employee provides medical documentation supporting that they are taking a mental health-related absence from work, you may be required to accommodate their leave.

It is important to note that an employer has a right to participate in determining what the best accommodation is for an employee and is entitled to request sufficient medical documentation to make an informed decision. An employee does not have the right to dictate what their accommodation is.

An assessment of what constitutes a reasonable accommodation is highly circumstantial. KPA Lawyers can assist you with knowing your rights and determining a plan of action.

4. Medical Documentation and the Employee’s Right to Privacy

As a rule, an employer may ask for reasonable proof that an employee has a condition which requires accommodation and/or is sick. However new legislation is being proposed to prohibit employers from requesting medical documentation in cases where an employee is taking a COVID-19 related absence. What this means is if an employee identifies that they will be absent from work because they are experiencing COVID-19 like symptoms, have been diagnosed with COVID-19, have been told to self-isolate by a medical professional or have otherwise been exposed to someone who has COVID-19, an employer cannot ask for medical documentation to support the employee’s absence. At this time, the law is unclear about what an employer can require in cases where an employee is self-isolating after travelling but is not under the direction of a medical professional to isolate or are not experiencing symptoms. In light of the current circumstances, it would be prudent to allow an employee to self-isolate without requesting medial documentation. If that employee is not showing symptoms, you may require that the employee continue to work remotely as much as possible. This ensures that your workplace remains safe for other employees. Under no circumstances should you require an employee who is symptomatic to return to work.

Other than this, an employer is Ontario has a right to not only request medical documentation to prove an illness, you also have the right to request further and better medical documentation of a disability, injury, or other medical needs your employee claims to have. However, you are not entitled to ask for a diagnosis – only for what the employee medically requires in light of a diagnosis.

If an employee provides you with medical documentation, personal health information, or discloses a diagnosis or disability to you, you must keep this information confidential as much as possible. Personal health information is protected under strict privacy and confidentiality laws. You may disclose this information to HR representatives, payroll administrators, or insurance providers where you deem it medically, legally or administratively necessary. However, disclose with care: sharing personal health information without reason or purpose may be a violation of the employee’s right to privacy. You must exercise care and caution when choosing to disclose personal health information.

Employer’s Rights During Infectious Disease Outbreaks

As an employer or small business, you still have rights during this time. These rights include:

1. Right to operate. Where it is safe to do so, you may continue to operate your business and may continue to require your employees to attend the workplace. If you are conducting risk assessments and taking reasonable precautions, you may continue operate.

2. Right to be profitable. While there are many rules accommodation, allowing leaves, and permitting absences in these times, you are not required to go into debt to continue operating or to support your employees.

3. Right to make reasonable business decisions. While you should keep your employees’ mental health and well-being in mind, you still have the final say. If you are one of the employers who may legally remain open, and after reviewing your circumstances, you determine it is safe to stay open, you may decide to stay open.

4. Right to medical information. Normally, employers in Ontario have a right to ask an employee to provide a doctor’s notes proving that an employee has a medical condition or otherwise require accommodation for a disability or illness. However, under the new provisions, an employer may only ask for medical documentation or information if the absence is requested for reasons not related to COVID-19.

What to do if someone comes to work sick or if an employee has been exposed or diagnosed

If an employee who is ill or exposed to COVID-19 attends at your workplace, you should do the following:

1. Don’t panic.                                                                                                                                                            2. Send that employee home.                                                                                                                                  3. Re-assess the risk to employees and whether the workplace is still safe. Once this is completed, assess whether the workplace should remain open. Keep in mind you must ensure the workplace is safe for employees. If you need to, seek professional guidance.                                                                        4. Determine a plan of action.                                                                                                                                    5. Communicate to your employees that they may potentially been exposed and outline what their next steps are.                                                                                                                                                                    6. If it remains safe to do so, continue operations. Ensure you take all precautions necessary to make the workplace safe again. This may include cleaning surfaces, doorknobs, cabinet doors, handles etc.    7. If it is not safe to continue operations and you can continue operations remotely, arrange for employees to work from home until the workplace is safe again.                                                                    8. If it is not safe to continue operations and you cannot continue operations remotely, assist your employees in accessing appropriate benefits (if available) until the workplace is safe again.

At this time there is no law in place which dictates that employers must cease operations if an exposed or sick employee or customer attends the workplace. Outside institutions may close an employer, such as a Health Inspector or the Ministry of Labour.

Relief for Employers and Small Businesses

The Province announced that relief will be available for small businesses impacted by the outbreak and closures. Details about this loan are forthcoming, KPA Lawyers will update once details are known.

Further Questions

If you are an employer who must close, have workplace health and safety concerns, or any other questions arising from the declaration of the state of emergency or other issues arising from public health crisis, KPA Lawyers’ business and employment law team remain available for consultations via telephone only at 905-965-6263. Our office is not accepting walk-in clients at this time.

Please note that the above information is meant to be information and does not constitute legal advice. If you need advice about your specific circumstances, please contact our offices via phone. This information may change as the situation develops. Updates will be provide at they become available.

Last updated March 17, 2020 at 12:00pm



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