Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
The World Health Organization officially declared the spread of COVID-19 to be a worldwide pandemic on March 11, 2020. The impacts of this spread are already being felt by Canadians, and they are sure to get worse before they get better. Workers should be aware of their rights and obligations in the coming months. This short primer provides an overview of some of those rights and obligations. Every employee’s situation is different and these suggestions are not provided as or a substitute for legal advice. All Ontarians should stay informed: Government of Canada’s Response to COVID-19
I’m infected but I can’t afford not to work. What should I do?
While anyone who is infected or thinks they are infected should immediately quarantine themselves to prevent the spread of the disease, the harsh reality is that many people cannot afford to take even one day off from work if they are going to make ends meet. Employees in this position have several options open to them:
- Figure out if you are entitled to leave under the Employment Standards Act (“ESA”). Many workers in Ontario are entitled to a variety of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, sick leave, and family responsibility leave. Each leave is only available if the worker is provincially regulated and if they meet specific eligibility criteria set out in the ESA. Moreover, while various leaves might be available to the same person, statutory leaves are not necessarily paid and can sometimes offset employer-provided benefits. Workers should also keep in mind that employers may be able to request evidence to substantiate their eligibility for certain leaves.
- Review your contract of employment and/or your employer’s policies for entitlements to sick leave or other leaves of absence. While many statutory leaves do not require employers to pay employees, some employers offer benefits beyond those guaranteed in the ESA. Many employers are also implementing special policies to address COVID-19, which may provide for enhanced benefits. Employees should check with their employers to see if they are being offered additional sick leave entitlements or alternative work arrangements, such as more generous policies on the ability to work from home. Again, keep in mind that these benefits may offset against ESA benefits and employers could likely ask for evidence to substantiate eligibility for certain entitlements.
- Consider applying for employment insurance. Workers who are unable to work due to infection by COVID-19 may also be eligible for security benefits from various government programs. For example, on March 11, 2020, the federal government announced that it is waiving the one-week waiting period for Employment Insurance for employees quarantined, or directed to quarantine themselves, because of COVID-19. Some employees in Ontario might also be eligible for workers’ compensation through the Workplace Safety and Insurance Board, depending on the risks associated with their work and how they became infected, among other things.
If you need more information about Employment Insurance (EI) you can read the earlier article on “the Basics of Employment Insurance (EI)“.
Can my employer make me stay home if they think I have COVID-19?
Probably not, but this depends on why they think you’re infected and on the nature of your workplace. Employees in Ontario are protected by human rights legislation, such as the Ontario Human Rights Code (“Code”). Among other things, the Code prohibits discrimination in employment on the basis of disability, ethnic origin, place of origin, race, and family status. Diseases, such as COVID-19, engage the protected ground of disability because it covers medical conditions that carry significant social stigma. This protection also extends to a perceived disability or medical condition, meaning it may still be a violation of the Code if an employer discriminates against a worker they think is infected even if the worker is perfectly healthy. The Code may also be breached where employers discriminate against individuals or communities because of an association, perceived or otherwise, with COVID-19, for example because the individual is originally from or has travelled through regions that are believed to be suffering more greatly from the spread of the disease.
Someone in my family is infected and I need to care for them or others now that they are quarantined. Do I get time off from work to do so?
Maybe. As noted above, employees in Ontario are entitled to a range of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, and family responsibility leave. These may be accessible to workers needing time off to take up family responsibilities during the COVID-19 pandemic. In addition, in certain circumstances, denying a person time off to care for family members may amount to a breach of the Code on the basis of family status. Note, though, that not every caregiver situation will fall into that category. While employers are expected to make reasonable efforts to accommodate legitimate family responsibilities, employees are equally expected to cooperate with that accommodation process and, if possible, to make alternative arrangements to avoid absenteeism.
Do I have to tell my employer that I’m infected with COVID-19 or that I think I’m infected? Can my employer ask me if I’ve been tested? Can they ask me for my results?
If you are infected or think you are infected, then every effort should be made to stay quarantined and seek appropriate medical care. But equally important to getting yourself healthy is avoiding the spread of the disease to others. Disclosing your condition to access the benefits and protections discussed above is a key way to go about doing this. Moreover, keep in mind that most employers will welcome knowing that their staff are infected to ensure proper accommodation and workplace safety. Further, as noted above, sanctions against employees for disclosing their infection would very likely amount to a breach of the Code. That being said, there is no general duty requiring employees to disclose their illnesses to their employers, and employers cannot generally inquire about that sort of information. Employees do have obligations when it comes to their own accommodation in the workplace, however, and employers will probably have policies in place providing for a highly confidential disclosure process to facilitate accommodation pursuant to employer obligations under the Code. At the same time, employees should note that employers do have statutory obligations to ensure workplace safety. The ongoing spread of COVID-19, along with increasing infection rates and associated health risks, may eventually necessitate a more proactive approach by employers. This may include, among other things, inquiries about whether employees are infected. Of course, any steps taken by an employer in this respect, along with any answers given by an employee, would be subject to privacy legislation and would have to be reasonable and tailored to the circumstances.
Can I wear a mask to work?
Right now, probably not. Healthy individuals cannot really reduce their risk of infection by wearing a face mask, and there are currently no government recommendations that people do so. As a result, whether employees are permitted to wear a mask at work will depend on the workplace and the type of work being done. Employees working in the health sector, for example, may have a more reasonable basis to wear a mask because they are more likely to be exposed to infected individuals, or they may be more likely to spread the infection to people who are immunocompromised. In comparison, employees working in less dangerous workplaces that are oriented to customer service, for example in the retail industry, do not share the same risks and therefore do not share the same need for protection. In each case, employers will need to weigh their legitimate business needs against the reasonableness of each individual employee’s request. The reasonableness of the request may also change as the disease continues to spread.