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Coping with COVID-19: (More) Employer FAQs

Published:

March 27, 2020

Author(s):

• Darren Stratton, Partner
• David Fraser, Partner
• Dominique Fontaine, Partner
• Michael Murphy, McInnes Cooper Alum

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The COVID-19 novel coronavirus has evolved rapidly, and so have the workplace issues employers are facing – and the questions employers were asking – as they’re forced to adjust with equal speed. To help employers continue to cope with the changing workplace implications of COVID-19, here are the answers to 19 of the latest legal questions employers are asking right now.

1. What steps is an employer permitted to take to enforce social distancing (a.k.a. physical distancing) by its employees in the workplace?

Occupational health and safety (OHS) laws generally require employers to exercise every reasonable precaution to provide a safe work environment. This requires they provide employees with the information, instruction, training and facilities necessary to do so and put reasonable controls in place to safeguard against workplace hazards. OHS laws also require workers to take reasonable care to protect their own health and safety and that of other workers and people at or near the workplace. What’s “reasonable” is largely dependent on the nature of the workplace, its activities and the risks they may create. But in the context of the COVID-19 pandemic, employers will not only be permitted but will be expected to take steps that reduce the risk of COVID-19 exposure and transmission in the workplace. Many employers have taken steps to reduce the number of employees in the workplace, implementing measures like remote-working arrangements where it’s feasible to do so. However, if it’s still necessary (and permitted by the relevant government authorities) for employees to attend the workplace, the steps the employer is expected to take – and with which employees are expected to comply – include directing employees to maintain social (or physical) distancing even in the workplace and implementing measures pursuant to government and public health directives by, for example:

• Rearranging workplace layout to minimize physical contact between employees.
• Staggering work hours to minimize contact with others.
• Eliminating employee attendance at external or internal meetings in person and directing them to conduct any necessary meetings virtually.

If an employee refuses to comply with the employer’s directives respecting social distancing in the workplace, the employer is entitled, and in the current circumstances likely obligated, to remove them from the workplace.

2. What steps is an employer permitted to take if an employee displays symptoms of COVID-19 in the workplace?

Consistent with public health recommendations or requirements, employers should clearly direct employees not to report for work if they have symptoms consistent with COVID-19 and to self-isolate until health officials indicate they are not a risk to transmit the virus. Employers can – and should – send home an employee who reports to work with such symptoms or otherwise contrary to the directions of public health officials.

3. When an employee who has been in the workplace has COVID-19 symptoms, but not necessarily a positive diagnosis, what information can their employer share with their co-workers while still respecting that employee’s privacy?

Privacy laws and best practices dictate that employers only disclose employees’ personal information to a third party when required to do so by law – or when reasonably necessary in the circumstances. And these are unprecedented circumstances. Furthermore, privacy laws and best practices don’t override OHS obligations. In the context of the COVID-19 pandemic, it seems reasonable and indeed necessary for the protection of other employees’ safety and for compliance with (most) public health directives for employers to share with the co-workers of self-isolated or “presumed” infected employees sufficient relevant information about their risk of exposure – but no more than necessary to do so. If you’ve been in contact with the provincial Chief Medical Officer (CMO), follow their advice respecting the information to provide to others in the workplace pending a positive diagnosis.

4. Is an employee positively diagnosed with COVID-19 required to disclose this diagnosis to their employer?

This situation is as much an OHS issue as a privacy one. Under normal circumstances, it’s rare that an employee is required to disclose a diagnosis or test results to their employer, or that an employer is justified in asking for it. In the context of COVID-19, however, and the obligation OHS laws impose on workers to take reasonable care to protect not just their own health and safety but also that of other workers and people at or near the workplace, it seems reasonable to require an employee to disclose a positive COVID-19 diagnosis to their employer so the employer can take appropriate safety measures.

5. If an employee tests positive for COVID-19, is the employer required to notify other employees who may have been in contact with that employee, or do public health authorities do so?

If the employee has been in the workplace during the preceding 14 days, seek direction from the CMO. It’s the CMO’s job to carry out contact tracing and they are authorized to collect, use and disclose personal information for these purposes. In the absence of clear direction from the CMO, the employer is still obligated to exercise every reasonable precaution to provide a safe work environment. If this requires disclosure of information about the presence of COVID-19 in the workplace, then the employer is likely justified in doing so, making every effort to minimize the personal information disclosed while still providing employees with sufficient relevant information about their risk of exposure.

6. If an employee contracts COVID-19 while working and therefore can’t work, can they make a workers’ compensation claim rather than apply for Employment Insurance (EI) benefits?

This isn’t yet clear. Each province and territory has its own laws and policies governing eligibility for workers’ compensation. Workers’ compensation authorities adjudicate compensation claims on their individual merits against those criteria. Generally, an employee could be eligible for workers’ compensation when they contract an “industrial disease” arising out of and in the course of employment, but regulations usually specifically identify those diseases together with the work processes associated with exposure to them. Some laws might compensate employees for contracting an infectious disease, but limit eligibility to workers in an occupation where there’s a particular risk of contamination, for example, health or laboratory work. COVID-19 can spread through community contact, including contact with asymptomatic people, in social and recreational environments. In these circumstances and at this time, it’s not clear whether compensation adjudicators will compensate workers whose job doesn’t give rise to a particular risk of exposure and who may have been infected outside of the workplace. However, the following questions that WorkSafeNB asks when assessing workers’ compensation claims arising from an infectious disease might provide some guidance in the context of COVID-19:

• Does the worker have a confirmed diagnosis of a specific infectious disease?
• Was there a confirmation that the disease was present in the workplace?
• Was the worker exposed to the infectious disease in the workplace?
• Does the evidence show that the worker was at a significantly greater risk of contracting the infectious disease due to their employment than they would have been as a member of the general public?
• Could the exposure have occurred outside the workplace?
• Would the nature of the worker’s employment activities allow for the transmission of the infectious disease?
• Was the incubation period of the infectious disease clinically compatible with the worker’s symptoms and timing of the disease?
• Did the worker use personal protective equipment in the workplace?
• Was there a documented community outbreak of this infectious disease?

7. What steps can an employer take if an employee can’t report to work because their flight is cancelled or because of government-imposed travel restrictions or the requirement they self-isolate or quarantine themselves, because of COVID-19?

It depends on the applicable provincial (or federal) laws – and things are changing rapidly. For example, some provincial governments are revising employment standards laws to protect workers who must take time away from work because of COVID-19; depending on the location, employees could be entitled to a leave of absence without pay and to job protection for some or all of these reasons:

• They have returned from travel and must self-isolate.
• They are under medical investigation, supervision or treatment for COVID-19.
• They are in isolation or quarantine due to COVID-19;
• The employee is acting in accordance with public health direction;
• The employer directs the employee not to work due to COVID-19.
• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
• They are directly affected by travel restrictions and can’t reasonably be expected to travel back to the province.

8. If an employee doesn’t want to come to work because they’re scared and anxious about getting sick – not because they have any health condition that makes them more vulnerable to contracting COVID-19 – do they have the right to refuse to work or to perform certain duties?

Only if their refusal is “reasonable” and is related to specific conditions in the workplace. OHS laws give employees the “right to refuse” to work when they reasonably believe the workplace conditions are unsafe, and obligate the employer to investigate and address the safety issue and pay the employee for any time they would have normally worked while the employer does so. A refusal because of fear of COVID-19 requires the employer to consider the employee’s specific concerns, and determine whether they are “reasonable” and it can (or has) address them through remedial measures, such as: social (or physical) distancing; increased sanitation regimes; availability of infection control materials (for example, personal protective equipment and hand sanitizers); restricting site access; and prohibiting site access to those experiencing symptoms. If an employee persists in a refusal the employer doesn’t find to be reasonable, the employer must follow the processes required by the applicable OHS law, which might include the involvement of a health and safety committee and/or government regulator.

9. If an employee doesn’t want to come to work because they have a pre-existing condition they say makes them a higher risk in relation to COVID-19 or is otherwise vulnerable to COVID-19 (for example, because of their age), do they have the right to refuse to work or to perform certain duties?

This situation engages the same OHS “right to refuse” and the same assessment of whether the refusal is “reasonable”. In this situation, however, a pre-existing condition or vulnerability could be relevant to the level of a particular employee’s risk of harm in the event of exposure to COVID-19. In such cases, an employee’s refusal could be reasonable despite the employer’s application of remedial measures in the workplace. The employer should consider whether it’s feasible to implement a remote working arrangement, or otherwise excuse the employee from attendance without pay.

This situation could also engage the employer’s duty to accommodate the employee, but only if the employee’s pre-existing condition or vulnerability is a disability or other personal characteristic protected by human rights laws. A remote working arrangement could also be a reasonable accommodation in this context, as could permitting absenteeism.

10. What are employers’ obligations to employees working remotely?

Employment-related laws apply to all employees, including those working from home because of the COVID-19 pandemic or because of a flexible work arrangement. However, the genesis of the home-working arrangements in the context of a global pandemic could very well affect how regulatory authorities will apply those laws. The key employment-related laws relevant to are:

• Occupational Health & Safety laws. Employers remain under an overarching duty to exercise every reasonable precaution to provide a safe work environment for employees – even when they work from home. This requires employers to consider and attempt to limit health and safety issues for employees working from home, and to make an effort to carefully delineate telecommuting employees’ work time and work environment. Under normal circumstances, this could include a site check of the employee’s home office. In the context of the COVID-19 pandemic, this isn’t reasonable or even possible given current government social distancing directives. Reasonable alternatives could include providing employees working from home with access to good resources to help them with designing, setting up and maintaining their home workspaces.

• Employment Standards Laws. Employers must also continue to comply with employment standards laws vis-à-vis employees working from home, including employees’ rights to overtime, break time, vacation time and emergency and other leave. Compliance with the obligation to keep accurate records of hours worked, and pay minimum wages and overtime pay, can often be particularly challenging in relation to employees working from home without direct supervision. Under normal circumstances, employers have time to implement mechanisms, like electronic systems, to do so. In the context of the COVID-19 pandemic, employers might not have had time to implement these mechanisms, but employers will ideally make some effort to establish even a rudimentary tracking system and to communicate expectations and responsibilities about working hours to employees.

• Human Rights Laws. Employees working from home continue to have the right to freedom from discrimination in employment on the basis of a personal characteristic protected by human rights law, and employers continue to owe employees working from home a duty to accommodate a protected characteristic to the point of undue hardship. Under normal circumstances, employers will take care to administer work at home options in a non-discriminatory manner. However, in the context of COVID-19, employers might have little choice in who works from home: it’s likely all employees for which the arrangement is feasible or accommodation in itself.

• Workers’ Compensation Laws. Employers must still comply with workers’ compensation obligations, such as re-integration of injured workers, though in the context of COVID-19, regulators will likely assess the employer’s ability to do in light of current circumstances. Further, employees who sustain an injury while working from home still have the right to assert a workers’ compensation claim, though as under normal circumstances, there could still be issues when it’s unclear whether they were “at work” for this purpose.

11. Many employees working remotely are trying to balance their employment and their childcare needs. Are employers required to accommodate those employees’ childcare needs?

An employer might be required to accommodate an employee’s childcare obligations while working from home during the COVID-19 pandemic, depending on the circumstances, and always only to the point of undue hardship. Human rights laws of all Canadian provinces and federally protect employees from discrimination in employment based on family status, which includes their childcare obligations. Unlike most areas of human rights law, the legal test for family status discrimination, and the trigger for an employer’s duty to accommodate the employee’s childcare obligations to the point of undue hardship, varies across Canada. Under normal circumstances, a common way for employers to accommodate an employee’s childcare obligations is a flexible work arrangement, including working from home. In the context of COVID-19, it’s the requirement to work from home to comply with government directives or the fulfilment of OHS obligations, coupled with the closure of schools and daycares, that likely triggers the employer’s duty to accommodate an employee’s childcare obligations to the point of undue hardship while working from home, under any of the Canadian legal tests.  Possible accommodations of an employee’s childcare obligations in these circumstances may include:

• Changing an employee’s existing schedule; for example, instead of working 7.5 hours from 9 a.m. to 4:30 p.m., allow the employee to work the same number of hours but in two or three blocks (for example, 7:30 – 10, 1:30 – 3:30 and 7:30 – 10:30) or whenever they can, if that’s feasible.
• Limiting or reducing the number of hours an employee works in a day (or week).
• If necessary, granting unpaid leave (to which the employee could be entitled under employment standards or other laws, with job protection).

The duty to accommodate isn’t limitless: it extends only to the point of undue hardship. However, that bar is high: employers are required to suffer some hardship, and a number of factors are relevant to quantifying it, including financial cost relative to the employer’s size, disruption of a collective agreement and the interchangeability of the workforce.

12. Can employers temporarily lay off their employees because of the COVID-19 pandemic without giving them any notice?

For unionized employers, layoffs are typically governed by the terms of their collective agreement. For non-unionized employers, in normal circumstances, a temporary lay off might amount to a termination at law (called a “constructive dismissal”). Whether it does depends on: what the employment contract says; the employer’s policies and past practices; the nature of the industry; and whether the employee expressly or implicitly agrees to the lay-off. However, in the unprecedented context of COVID-19, many employers could be relieved of their normal legal obligations because the layoffs were unforeseeable and “beyond their control.” Canadian employment standards laws specifically contemplate this possibility with respect to statutory minimum termination notice obligations, and the New Brunswick government has stated statutory notice isn’t required for layoffs caused by COVID-19. It remains to be seen whether other provincial governments will provide similar guidance. In addition, the legal doctrine of “frustration of contract” could operate to relieve employers of notice obligations that might exist over and above any statutory obligations. Finally, employees are obligated to mitigate any damages they suffer as a result of being laid off. In some cases, this could include agreeing to a temporary layoff, particularly in the current economic crisis.

13. Are there any alternatives to laying off employees available to employers?

In some cases layoffs can’t be avoided, but there could be other options available to employers faced with the difficult choice of either ceasing operations completely or reducing them to critical functions. One option might be to first attempt to reduce employee hours. While there’s some risk a substantial reduction in hours could amount to a constructive dismissal, it does allow employees to remain employed during the COVID-19 crisis while allowing their employer to continue operating. In that case, employers can consider registering with Service Canada for one or both of two federal government programs:

• Work Sharing Agreement. Subject to various rules, a Work Sharing Agreement allows employees to continue working and to receive Employment Insurance (EI) benefits proportionate to their lost hours.

• Supplementary Unemployment Benefits (SUB) Plan. To take effect, the employer must still lay employees off, but an SUB Plan permits the employer to “top-up” EI benefits and, to the extent possible, ensure that employees are “made whole” through the temporary layoff period.

14. Is there a threshold at which reducing an employee’s hours amounts to dismissal?

No: there’s no threshold that applies to all employees “across the board”. Moreover, in some cases, employers might have the right to determine schedules, and to reduce or increase hours accordingly, through contract, policy or past practice. Where the employer doesn’t have such a right, whether doing so amounts to a constructive dismissal depends on how much the change impacts the employee’s income. In the unique context of COVID-19, it’s also possible courts will not view a reduction in hours, regardless of how substantial, as a constructive dismissal because the employer’s actions wouldn’t demonstrate they no longer wished to be bound by their prior agreements. Rather, as with a temporary layoff, the reduction would be caused by circumstances beyond the employer’s control, relieving the employer of its usual obligations.

15. Can an employer require an employee to use their banked time and vacation time before it temporarily lays that employee off?

If a temporary layoff amounts to a constructive dismissal, employers might be obligated to pay out any banked time or vacation time as of the effective date of the layoff. However, consider the employee’s interests in doing so. For example, with the employee’s agreement, employers could hold those amounts in trust for the employee on the understanding the employee will be returning to work as soon as circumstances permit. If the employer pays out these amounts, the employee’s EI benefits might be delayed.

16. Can laid off employees stay on their employer’s benefits plan?

It depends on the plan and on the particular benefit. Consult with your benefits plan provider to determine whether and in what circumstances benefits can be continued for laid-off employees. For example, many benefits plans allow for health and dental benefits, but not short or long-term disability, to be continued while an employee is “off work” or “inactive”. Even if continuation is permitted, it’s not necessarily automatic or mandatory; depending on the terms of the employment contract (or collective agreement), the employer might be able to choose whether to allow benefits to continue during a period of layoff.

17. Some provincial governments are saying they might order “non-essential” businesses to close as circumstances evolve, and at least one has already done so. What’s an “essential” business in this context?

Right now, that depends on the province. Normally, an “essential service” refers to businesses that are strictly necessary for society to continue to function, such as hospitals, public transit, certain manufacturing or “supply chain” companies, pharmacies and grocery stores. However, provincial governments haven’t approached this issue in a uniform manner, and are adjusting their actions as the COVID-19 pandemic evolves. Employers should continue to actively monitor this situation to ensure the continued operation is permitted by law, and in the meantime ensure they’re taking adequate steps to protect their employees’ health and safety.

18. Are businesses under any restrictions vis-à-vis recruiting because of COVID-19?

Legally, no. Practically, keep these tips in mind:

• Maintain social distancing in the interview process; for example consider interviewing via video conference when possible, and maintain the recommended physical distance in any in-person interviews.
• If you hire someone specifically to deal with COVID-19 related issues or on a temporary basis, for example to replace a self-isolating employee, require a fixed-term contract (with a well-drafted termination clause).
• Confirm their ability to start work as scheduled and to come to work at the workplace, or work from home (as applicable).

19. If a business hired a new employee but they haven’t started yet, does the business have any options to delay the start of employment – or to get out of the contract altogether?

Generally, once an employer has unconditionally made an offer of employment and the candidate has accepted it, an employment relationship has been created and the employer must abide by its contractual and legal obligations to the employee. Under normal circumstances, substantially delaying the start date of employment without reasonable notice of the change could amount to a constructive dismissal if the employee doesn’t accept it and “quits”. However, in the context of Covid-19, the legal doctrine of “frustration of contract” could apply to relieve the usual obligation to give reasonable notice of a change. Advise the employee as soon as possible of the new start day and explain the delay is due to unforeseen circumstances beyond its control. If you want to get out of the contract altogether, the safest approach is to give the (new) employee the minimum pay in lieu of the termination notice the applicable employment standards law (or the employment contract, if it contains a termination clause) requires.

Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper for answers to your questions about handling teh workplace impact of COVID-19.

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