Employers must consider legal obligations during COVID-19 crisis

By LegalMatters Staff • In light of the coronavirus crisis “health and safety is the top priority and concern on the minds of employers and employees,” says Ontario employment lawyer Nadia Zaman.

The number of COVID-19 cases in Canada continues to rise, forcing closures of businesses, schools, theatres, community centres and professional sports leagues in an effort to curb the spread of the virus.

Zaman, an associate with Rudner Law, says “the situation is changing rapidly and that has caused a lot of panic and anxiety.”

“People are not acting the way they would normally act,” she tells LegalMattersCanada.ca. 

Seek legal advice

Zaman says “employers must do their part to protect themselves and their workers and should seek legal advice to ensure they are meeting their legal obligations” under the Ontario Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (OHRC).

“Even though employers may have policies in place with respect to health and safety this is a time to re-evaluate those policies and consider whether any changes need to be made,” she says.

Zaman says it is essential for companies to have a plan in place that can be communicated to workers.

“Employers should provide clear guidance as to what the expectations are as well as what they are doing to ensure that there is a safe work environment,” she says.

Companies should also put their plan of action in writing, Zaman advises.

“If it is verbally communicated it might not reach all workers because realistically, right now, many employees could be working from home or be on a leave,” she says. “Communication should be in writing and distributed widely so that workers are aware of the policies to avoid any miscommunication and confusion.”

Employers should be “more mindful of certain hygiene practices because employers have a duty to provide a safe work environment under the OHSA,” Zaman says.

Post notices

“They should post notices for all employees, in order to ensure workers get all the information they need and take all the necessary precautions to ensure their health and safety,” she says.

Another thing to consider during this pandemic is a travel policy, especially in light of the major travel restrictions announced by Prime Minister Justin Trudeau along with the Public Health Agency of Canada’s declaration of all travel outside of Canada as high risk, Zaman says.

“Let employees know that upon return from international travel, they must self-monitor for symptoms, and should consider self-isolation for 14 days as an additional precaution,” she says.  

Based on safety concerns, Zaman says “employers would likely be able to justify requiring employees who have returned to Canada to either work remotely if they can do so or take a leave of absence, as well as recommending that they self-quarantine.”

Because more businesses are choosing to temporarily close to fight the spread of the virus, Zaman says employers “need to review the contracts and policies they have in place to ensure that they are actually abiding by their obligations.”

“Let’s say an employer is planning to lay off employees. Is there an explicit or implicit agreement they have with the employees that they can temporarily lay them off?” she asks. “If there is no such agreement, then the employer must obtain the employee’s agreement to temporarily lay them off. If they don’t, it’s a constructive dismissal and they can be liable for severance as if they had simply dismissed the employee.”

Best practice

Zaman also suggests that “as a best practice, employers should try to be mindful of what’s happening around them.”

“For example, unless there’s a mandate to shut down from the government, that’s not something that employers are required to do at this stage,” she says. “So, if they are asking employees to come into work, they should be mindful of their duty to accommodate up to the point of undue hardship. An employee might need accommodation based on their childcare obligations or due to illness.”

Companies should explain the different options available to workers not able to work remotely, such as Employment Insurance benefits, sick day allowances or unused paid vacation time, says Zaman, adding legislation is in the works to protect Ontario workers.

She says organizations also have a legal obligation to ensure their workplaces are free from discrimination and harassment based on the OHRC.

Safety risk consideration

“Employers have to make sure they are not treating an individual differently based on a protected ground under the code, such as their ethnicity, race or place of origin,” Zaman says. “If they are treating a worker differently in light of COVID-19, it has to be based on a reasonable assessment of what the safety risk would be to that employee as well as to others in the workplace.”

It is also important for employees to know their rights. If someone suspects an employer is arbitrarily preventing them from attending work or denying accommodation, they “should seek legal advice and make sure they are getting what they are entitled to,” she says.

In the end, it all comes down to having a sound plan and communication, says Zaman.

“It is so important at this stage for employers to assure employees that there is no cause for panic,” she says, adding Rudner Law continues to monitor the coronavirus pandemic and posts updates on the firm’s blog.