The recent Ebola outbreak should remind employers they are required to provide a workplace free from recognized hazards. Employers need to create and implement policies and procedures to protect employees while minimizing impacts on normal business activities.
In addition to having substantive business continuity plans, employers should have up-to-date policies relating to workplace safety specific to the epidemic or pandemic in question.
Employers’ policies should be tweaked on a case-by-case basis, taking into account factors such as the manner of transmission, whether a vaccine exists and mortality rates. In addition to specific considerations, there are a number of contentious issues that always need to be addressed.
Human rights discrimination
An employer has to tread carefully when taking precautions such as excluding certain employees from the workplace. Measures should only be taken based on hard scientific facts from a credible health authority.
If Ebola was to spread to Canada, employers should only exclude employees who have been to West Africa or otherwise have been exposed to patients who are contagious.
During the SARS (severe acute respiratory syndrome) scare in 2002-03, some employers attempted to exclude certain employees of Asian origin. Exclusions not based on scientific facts, directed toward a particular race, would likely constitute racial profiling, which is prohibited under Canadian human rights legislation.
Leaves and telecommuting
During the SARS outbreak, it was unclear whether quarantined employees, or employees who only came into work sporadically, were eligible for paid or unpaid leave. Employers had to consider whether leave should qualify as emergency leave, unpaid sick leave or a temporary layoff. There was massive confusion.
Ultimately, the Ontario government passed legislation to address emergency leave provisions for SARS-related work absences. Employment insurance regulations requiring medical certificates were also lifted for SARS as well as the mandated waiting period before claiming benefits.
Canadian employment legislation allows employees to refuse work if they believe the work conditions endanger their health and well-being (except for certain workers responsible for public safety). Retaliation against these employees is strictly prohibited. Employers are required to be reasonable when it comes to requests made by employees for special protective equipment. The same is true with employees refusing to travel to infected areas.
Most employers felt workers who contracted SARS should be eligible for sick benefits. There was debate on whether employers were required to pay those who entered quarantine as a precaution but were not actually sick. There were also questions regarding whether employees who voluntarily quarantined themselves due to fear of exposure were entitled to be paid.
In many cases, employers elected to pay employees in all three categories, regardless of legal obligations.
It may be impractical to require a medical certificate to justify a leave of absence or benefits. For example, access to hospitals may be limited, clinics may be overwhelmed and the availability of tests may be challenged. Employers may need to establish alternative means of proof, including questionnaires or telephone interviews, to validate absences.
The privacy of health-related information is well-established in Canada. Employers are in a quandary, however, when they become aware an employee has been or may be infected — or exposed.
In general, while the individual has a right to privacy, the state may temporarily suspend this right in the case of serious public health risks. A related question is whether an employer can require an employee who is asymptomatic to undergo a physical exam. The answer appears to be yes, for the same reasons expressed above.
As to when exactly the public good overshadows individual privacy rights, the answer must be determined case by case.
Perhaps surprisingly, quarantines are not always covered in short-term disability (STD) plans. Plans are strictly interpreted so they often fall outside the scope of the plan. In the absence of coverage, employers have often stepped into the lurch and extended STD coverage to quarantined employees.
An employee who suffers an injury or illness in the course of her employment is entitled to workers’ compensation coverage, including medical care and income replacement. This generally covers employees who are exposed not only in their home province but also while travelling.
Duty to provide a safe workplace
So, does an employer increase its liability by providing health advice to employees in the form of a policy, or is the employer better off not having a policy?
Failing to provide a contagious illness policy likely exposes an employer to greater risk of violating its duty to provide a safe workplace, or arguably to a class-action suit for negligence. Best practice is to make health advisories available to employees sans interpretation, and to provide updates.
Contagious illness policies need to be all-encompassing. It may be prudent for employers to have a generic template ready and a specific policy created and implemented on a case-by-case basis.
Renato Pontello is legal counsel to Solantro Semiconductor in Ottawa. He can be reached at firstname.lastname@example.org. This article originally appeared in Canadian Lawyer, a sister publication to Canadian HR Reporter.
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