March 23rd, 2020 by FH&P Lawyers

The starting place for any discussion is that employers are obligated to provide a safe working environment pursuant to occupational health and safety legislation.

Current information indicates that COVD-19 is spread through respiratory droplets from coughing and sneezing. Employers should act reasonably to protect their workers from exposure. Employers should have a written policy in place. Some suggestions of what to include, are:

  1. Advising workers to stay home if they have symptoms, or leave work if symptoms develop.
  2. Advising workers to shield coughs and sneezes with a tissue, elbow or shoulder, not touch their face with their hands, frequently wash their hands with soap and water, and use (which the employer should provide) alcohol based hand sanitizer.
  3. Practice social distancing.
  4. Practice deep cleaning and sterilizing.
  5. Consider ways that employees can minimize their interactions with each other and customers. Some ideas include:
    a. Working remotely from home
    b. Maximizing the use of the internet.
    c. Asking customers to bring their own pen to sign documents.

If an employer cannot provide a safe working environment, an employer should consider shutting down for the duration of the pandemic.

  1. Does the employer have to pay an employee if the employee is unwell or suspects that they have the virus?
    An employer does not have to pay an employee if the employee is not working. The employer should encourage the employee to stay away from the workplace, and of course, to see a doctor. While an employer does not have to pay an employee, if the employer or an insurance company provides sick benefits, the employee may be entitled to them. An employee may also be entitled to medical E.I.
  2. Does an employer have to pay an employee if the employee is off work and diagnosed with COVID-19?
    Again, an Employer does not have to pay an employee if the employee is not working. However, an employee may be eligible for sick benefits if the employer or an insurance company provides them. The employee should be entitled to medical E.I.
  3. Does an employer have to pay an employee who is not working, and self-isolating due to exposure or potential exposure to the virus?
    The Employer does not have to pay the employee. An employer who provides self insured benefits can choose to do so. If the employer uses an insurance company to provide benefits, insurance benefits may be provided.
  4. Does an employer have to pay an employee who refuses to come to work due to fear of the virus?
    An Employer does not have to pay an employee who is not working due to virus fear. However, if the matter is contested, an employer will have to show that its workplace was safe. If this occurs, an employer may consider other alternatives such as asking the employee to access his or her vacation, taking an unpaid leave, or offering a temporary lay-off.
  5. Can an employer insist that employees come to work or face termination?
    An employer may insist that an employee attend work, and the employer may terminate the employee if the employee refuses. However, if the employee refuses to attend work due to virus fears, the employee is, in effect, alleging an unsafe workplace. Specific procedures under the health and occupation legislation must be followed. The employer must, in effect, demonstrate that its workplace is safe. As such, it may be better for an employer to deal with the employee as set out in number 4.

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