What employers should know during the coronavirus pandemic
TORONTO -- As the number of confirmed cases of COVID-19 rises in Canada, many employers are grappling with questions concerning how they can protect their employees from the virus while keeping their businesses afloat.
Prime Minister Justin Trudeau has asked that all employees who are able to work from home do so as he introduced the federal government’s plan to provide financial support to individuals and businesses amid the pandemic.
While many companies have directed their employees to work remotely or have temporarily closed their doors, others are still operating and their owners are facing difficult decisions concerning how to balance their employees’ right to a safe work environment with the health of the business.
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To provide some clarity on the matter, employment lawyer Daniel Lublin breaks down what employers should know amid the pandemic.
What can they ask employees?
If an employer suspects one of their employees might have contracted the new coronavirus, Lublin said there are several questions they’re allowed to ask them without violating their right to privacy.
These questions include:
- Are you exhibiting any symptoms of the illness?
- Have you come into close personal contact with anyone who’s exhibiting any of the symptoms?
- Have you travelled to an affected area?
- Have you been in close personal contact with anyone who has travelled to an affected area?
Lublin said employers should be careful, however, not to only ask these questions to employees of a certain race, religious background, or ethnicity.
Can they ask for proof of illness?
Under normal circumstances, Lublin said employers are within their rights to ask a worker to produce a doctor’s note if they’re going to be home sick for a period of time.
However, during the current health emergency, Lublin said employers shouldn’t ask employees to visit a doctor for a note. He said some provincial governments are already drafting legislation that would abolish the right of employers to ask for a sick note under the current conditions.
“That’s all about to go out the window,” he told CTV’s Your Morning on Monday.
Do they have to pay an employee who has become ill?
If an employee is staying home in isolation because they have become ill, Lublin said their employers are not obligated to pay them during the absence. Employees do, however, have other options to recover some of their lost compensation.
Some of these other options include paid vacation time, federal employment insurance, sick leave pay, workplace safety insurance claims, and short-term disability benefits.
Do they have to pay their employees if the government forces the business to close?
The provincial governments in Ontario and Quebec have ordered all non-essential workplaces to close by March 25. Business in Ontario will be expected to close for two weeks, while those in Quebec will remain shuttered for three weeks.
In the case of a government-mandated shutdown, Lublin said employers are not required to pay their employees during the time of the closure. He said those situations shouldn’t be considered temporary layoffs, which can give employees the opportunity to sue their employers for the termination of work.
“I don’t think they can sue the company for that. I think that’s just a mandatory order of the government that basically absolves an employer of any obligation to pay and I think it also absolves an employer for liability during that period,” he told CTVNews.ca on March 24.
For employees whose jobs aren’t considered an essential service and who are unable to work remotely, Lublin said the best course of action is to apply for Employment Insurance (EI) benefits through the federal government. He said the application itself may be tricky in a scenario such as this because there isn’t a code for mandatory work stoppages.
Lublin advised those who are out of work because of the government shutdown to apply for EI benefits with the code for quarantine, which means they’ll receive them faster, and to put in the application’s comments section that they’re applying because of a mandatory shutdown of business due to government order.
Can they force an employee to come in to work?
According to occupational health and safety legislation, employees have the right to refuse to come in to work if they have reasonable grounds to believe there is a danger to their health and safety.
Under Part II of the Canada Labour Code, a danger is defined as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered."
If an employee exercises their right to refuse to work, it’s the employer’s obligation to investigate the situation in the presence of that employee. If the employer doesn’t think a danger exists, the employee can apply to have the Labour Ministry conduct another separate investigation of the workplace conditions.
In light of the COVID-19 pandemic, federal and provincial governments have urged businesses to be flexible and allow employees to work remotely if they have the ability to do so.
However, they’re not obligated to allow employees to work remotely, unless the workplace poses a danger to the health and safety of those workers.
Do they have to pay employees who aren’t ill, but told to stay home?
If a company shuts down or tells an employee not to come into work as a precaution, Lublin said they should be paid. He said employers who refuse to compensate symptom-free workers risk human-rights complaints or constructive dismissal lawsuits.
“If those employees are ready, willing, capable, and able to work, at least for the short-term, they should be paid as long as they can be,” he said.