As countries learn more about the characteristics of the Coronavirus-2019 (COVID-19), and observe how quickly it can be transmitted, we are seeing dramatic measures taken to prevent its spread. We summarize what we know about the virus to date, what legal obligations it creates for employers, and best practices to consider going forward.
The virus originated in Wuhan, China and has now spread to 118 countries with the most serious rates of infection occurring in China, Iran, South Korea, Japan and Italy.
Covid-19 is a unique strain of the coronavirus that leaves victims feeling symptoms similar to the flu – coughing, fever, etc.
The most vulnerable victims are the elderly and those with compromised immune systems. In this regard, individuals with diabetes, heart conditions or a lung disease are more likely to experience severe symptoms and require hospitalization.
The most vulnerable victims include those with the following health conditions:
- Chronic congestive heart failure,
- pulmonary disease,
- Cancer or receiving chemo treatment
- and anyone on any immunosuppressant regiment
Being Elderly coupled with a health condition could result in fatality.
The virus has a 14 day incubation period meaning after you get the virus, it can take up to 14 days before one experiences any symptoms.
The virus is thought to spread mainly from person-to-person between people who are in close contact with one another (within about 6 feet). This occurs through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.
The latest research indicates the virus can live for up to three (3) days when airborne and for up to 12 hours on surfaces.
The federal government has closed the border with the U.S. and is asking Canadians to avoid all non-essential travel outside of Canada. In addition, several airlines have already cancelled outbound operations and are focusing resources on repatriating Canadians abroad.
Response of the Federal Government
On March 18, 2020 the federal government announced a stimulus package to support employers and individuals during the current state of emergency including (but not limited to):
- A new Emergency Care Benefit of up to $900 biweekly, up to 15 weeks, to provide income support to workers, including the self-employed, who have to stay home and don’t qualify for paid sick leave or employment insurance. The measure could disburse up to $10 billion.
- A new Emergency Support Benefit to provide up to $5 billion in support to workers who are not eligible for EI and who are facing unemployment.
- A six-month, interest-free reprieve on student loan payments.
- Extending the tax filing deadline to June 1 and allowing taxpayers to defer until after Aug. 31 tax payments that are due after today and before September.
- $305 million for a new Indigenous Community Support Fund to address immediate needs in First Nations, Inuit and Métis Nation communities
These efforts were coordinated with Canada’s major banks who introduced a mortgage deferral for up to six (6) program for individuals who meet the applicable criteria.
Affected employers can also access the Work-Sharing Program – an adjustment program designed to help employers and employees avoid layoffs when there is a temporary reduction in the normal level of business activity that is beyond the control of the employer. The program provides income support to employees eligible for Employment Insurance benefits who work a temporarily reduced work week while their employer recovers: https://www.canada.ca/en/employment-social-development/services/work-sharing.html
Response of the Ontario Government
On March 17, 2020 the Ontario government declared a state of emergency and closed all recreation centres, private schools, public libraries, bars, restaurants, movie theatres, concert venues and places of worship until at least March 30th.
On March 16, 2020 the government announced it will amend the ESA to provide job protection for employees unable to work because of the following reasons:
- the employer directs the employee not to work
- the employee is under supervision or treatment for COVID-19
- the employee is acting in accordance with an order under the Health Protection and Promotion Act or is acting in accordance with public health information or direction
- the employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure
If passed, these changes would add a layer of complexity to employers who are laying off employees and ultimately dismissing them because of the sudden and prolonged downturn in business. If you are contemplating layoffs or dismissals, please contact a professional at the firm to better understand the risks and craft the appropriate strategy.
i. The Occupational Health and Safety Act
The Occupational Health and Safety Act (“OHSA”) requires employers in Ontario to take all reasonable measures to provide a safe workplace for employees. In addition, the OHSA also allows an employee the ability to refuse work where the work, or workplace, is likely to endanger their health or safety. A caveat to this is an employee working in an inherently dangerous position cannot refuse to work, i.e. a police officer or firefighter.
However, this right to refuse work under OHSA is not limited to physical harm and would include the risks posed by contracting Covid-19. As such, given the growing rates of infection and understanding of how easily the virus is transmitted, employers must be alert to maintain the safety of its employees, in particular those who are vulnerable or responsible for taking care of someone who is vulnerable.
This would include allowing individuals who are ill to use sick leave and/or work remotely. It may also include extending sick leave to individuals who are not ill, but are under self-quarantine to avoid spreading the virus at work. The various statutory leaves of absence available in the circumstances are discussed below.
ii. Employment Standards Act, 2000 (Sick Leave)
Under The ESA Once an employee has been employed for two consecutive weeks, they are entitled to three (3) days of unpaid leave each calendar year due to personal illness, injury or medical emergency.
a) Family Responsibility Leave
An employee may be also use family responsibility leave for absences relating to the current pandemic. Again, once an employee has worked for an employer for at least two consecutive weeks, the employee can take up to three (3) days of unpaid leave each calendar year because of an illness, injury, medical emergency or urgent matter involving their spouse, parent, brother or relative who is dependent on the employee for care or assistance.
b) Declared Emergency
A declared emergency is triggered when either the Lieutenant Governor or the Premier must declare an emergency under the Emergency Management and Civil Protection Act (EMCPA). Further, employees must be unable to perform their normal job duties because one of the following conditions are met:
- they are subject to an order under the EMCPA;
- they are subject to an order under the Health Protection and Promotion Act (HPPA); or
- they are needed to provide care to a relative
The employee’s right to this leave generally ends when the declared emergency is terminated. One exception includes where an employee is still providing care for a relative.
iii. Employment Insurance Sick Benefits
The federal government has announced several changes to the Employment Insurance program to provide assistance needed during this emergency. The changes include the following:
- Eligible workers with no or limited paid-leave benefits through their employers can apply for up to 15 weeks of employment insurance. The one-week waiting period for benefits has also been waived.
- The current EI payment is 55 per cent of your earnings up to a maximum of $573 a week
- A medical certificate is not required for people who are ordered into quarantine by law or by a public health official.
The government has set up a dedicated toll-free number for people in quarantine seeking to waive the waiting period (1-833-381-2725)
- Require employees to report any travel outside of Canada, including the US, in the past 14 days to Human Resources even if they are not experiencing symptoms.
- If an employee travels to an area of concern (China, Iran, South Korea, Japan, Italy), that employee may be asked to place themselves in quarantine for 14-days before returning to work.
- Cease all international travel for work-related purposes and limit regional travel to that which is necessary;
- Discourage group gatherings of more than 20 people;
- If an employee believes they have come into contact with the Covid-19 virus, they should self-quarantine for 14 days
- Contact a professional at the firm to discuss any planned dismissals or temporary layoffs
It is important to keep in mind that the response to Covid-19 is an evolving situation. The policy goal of various government actors has been to control the spread of the virus by limiting travel and events that would generate large crowds. However, to date, there has not been any directive in Canada for employers to cease operations. As such, employers must assess their individual workplaces and create an operational plan that allows work to continue, but which adequately considers the health risks Covid-19 presents to its workforce, clients and other stakeholders.