Workplace flu outbreak could constitute ‘reasonable basis’ for work refusal: Lawyer
Employers have an obligation to prevent the spread of influenza in the workplace, says Toronto-based occupational health and safety lawyer Deanah Shelly.
For example, Ontario’s Occupational Health and Safety Act (OHSA) requires that employers take every “reasonable precaution” to protect the health and safety of its workers. A broad interpretation of section 25(2)(h) suggests employers would be well advised to implement measures to prevent infection in the workplace, the Gowlings associate says.
“It doesn’t define it as a legal obligation, but it is a legal duty to basically protect the workers,” she says. “It doesn’t specifically pull out the flu, but employers and supervisors have that general duty.”
Under section 25(2)(a) of the OHSA, employers are further required to protect their workers’ health and safety by providing “information, instruction and supervision,” Shelly says.
“Right there, there is a legal duty,” she says.
Problems could arise for employers if an employee refuses to work because she believe her safety is at risk as a result of influenza, Shelly adds.
“There’s always that right to refuse work if there’s a rational basis for the refusal,” she says. (See Clear work refusal policies prevent confusion.)
Section 43(3) of the OHSA permits a worker the right to refuse work if she perceive her safety to be at risk. To establish a work refusal, though, the worker must have a rational basis for the refusal. In the case of the flu, an employee could argue coming into contact with an infected person is a rational basis to refuse work, Shelly says.
“Potentially, if there is direct contact with an infected person, then you remove that contact,” she suggests. “You try to control for direct contact.”
The most important thing an employer can do is have well-developed policies in place for workplace infection prevention, Shelly says.
“Ultimately, they have to do their due diligence from both perspectives — employers and the supervisors,” she says.
Workplace clinics
Employers may want to provide information on where nearby flu vaccination clinics are located. They may even want to offer a clinic at the workplace, like those provided by Irving Health Services (IHS) at its many locations across the country.
IHS provides occupational health and safety services for 15,000 employees at St. John-based J.D. Irving Inc., which has businesses in the oil, agriculture, food processing and transportation sectors.
“It is not mandatory that one of our businesses have it. We recommend it as a best practice for flu prevention during the flu season,” says Mary Martell, IHS director.
IHS employs the Victorian Order of Nurses (VON) to conduct the clinics it holds at its sites. The non-profit organization has been providing workplace flu clinics for more than 20 years, according to Cindy Hitsman, senior director of business development at VON.
During the 2011/2012 flu season, VON immunized 110,000 people at 3,000 clinics across Canada, Hitsman says.
“The nice thing about having it on site is that if you were to say to your employees go out (and get the flu shot), it may take four hours out of their day by the time they get to the clinic,” Hitsman says. “Whereas, if you’re having it on site, you’re looking at probably 20 minutes that they’re away from their desk.”
Employees are responsive to an employer’s helping hand, she says.
“People like to know that their employer cares about them,” she says. “There’s a lot of goodwill that it brings forward between an employer and their employees.”
That’s one of the benefits IHS sees in offering on-site flu vaccinations.
“We feel that (by) going one step further, it’s a message we take to our employees saying we take their health very seriously,” Martell says, adding that there is a benefit to the business, as well.
“It’s a tool for prevention,” she says. “Wellness as a whole is a strategy on our strategy map. It’s on the radar constantly with our employees.”
On average, J.D. Irving sees a 30 per cent participation rate from employees, which the company looks at positively, she says.
A 30 per cent participation rate is the national average, according to Hitsman.
“We try to encourage employers to market it as much as possible to their employees because the more that people know about it and what they know about it, the better the turnout is,” she says.
At J.D. Irving, the company tries to promote it from the top, Martell says.
“I think for head office, we have a good three days that we do the clinic. For our site, specifically, we had about a 45 per cent turnout,” she says. “It is a great social opportunity. People you wouldn’t normally see in any given day, you see at the clinic.”
Turnout differs from province to province, Hitsman adds.
“We also know that in some provinces, like British Columbia, there’s a higher turnout than there is in other provinces,” she says. “They’ve done a very good job of promoting health in British Columbia. Ontario’s a little bit higher, as well.”
At the end of the first week in January, there had been 3,864 cases of the flu, according to the Public Health Agency of Canada, which also indicated the number was “above the expected range for this time of year.”
On-site clinics a liability?
After an employee receives a flu shot from a VON nurse, she is asked to stay behind for 15 to 20 minutes.
“The reason for that is just in case someone has an anifilactic reaction,” says Hitsman.
It’s not something employees or employers should worry about, she says.
“They’re rare. Very rare. It doesn’t happen very often.”
If an employee has an adverse reaction in the workplace to the shot, there aren’t any legal repercussions the employer needs to be worried about, says Shelly.
“I think that’s beyond the scope of (the Occupational Health and Safety Act),” she says. “At the end of the day, the employee or the worker would be the one choosing to or not to have the flu shot.”
Germ warfare
Shelly encourages employers to promote basic prevention techniques that can be carried out in the workplace as a measure of taking “reasonable precaution.”
This includes reminding staff about the importance of:
• hand washing
• using hand sanitizers
• coughing into their sleeves
Policies outlining alternatives to face-to-face meetings should also be explored, Shelly says.
