COVID-19: Workplace pandemic planning
By McLennan Ross LLP (Erin Ludwig, Partner and Rebecca Silverberg, Associate)
Information on the COVID-19 pandemic, and steps employers should take to manage the impact on their workforce
By McLennan Ross LLP (Erin Ludwig, Partner and Rebecca Silverberg, Associate)
As of April 28, 2020, 49,686 confirmed cases of COVID-19, a novel coronavirus, have appeared in all provinces and territories with the exception of Nunavut, with the highest number of cases in Quebec, Ontario, Alberta and British Columbia. As COVID-19 has now impacted the day to day lives of most Canadians, as well as the daily operations of Canadian businesses, there is a constant reminder that there is potential for both individual infection and workplace disruptions to become a tangible and serious risk.
Presently, employers should be examining their workplace readiness for COVID-19. Continuity planning is critical. Employer communication with employees about emergency preparedness, workplace expectations, and leave in the event of illness or quarantine should be occurring now. Importantly, in the event of a widespread COVID-19 outbreak in Canada, an employer’s responsibilities under occupational health and safety, employment standards, and human rights legislation will continue as they would with any other illness impacting employees.
This article is meant to provide a primer on pandemic characteristics and answers to a number of frequently asked questions arising in the context of pandemic planning in the workplace and appropriate business responses to the COVID-19 outbreak. We have also included some immediate actions that employers can take as they begin to plan for an increase in the impact of the COVID-19 outbreak.
Influenza-type viruses periodically cause worldwide epidemics or pandemics with high rates of illness and/or death. COVID-19 has been reported in over 110 countries. A pandemic is an epidemic crossing international boundaries. The decision as to whether a pandemic exists is made by the World Health Organization. A high incidence of infection in Canada or a region of Canada could result in the need for extraordinary measures, and those decisions are made by the Chief Public Health Officer and/or local authorities in affected provinces or territories.
A pandemic is not like a physical disaster. A pandemic has unique characteristics when compared with a more “typical” disaster:
Widespread impact: The impact of a pandemic is widespread, even global, not localized to a single area. Many business pandemic plans assume some part of an organization is unaffected. That may not be possible in the event of a pandemic.
Duration: A pandemic is likely to exist over an extended period of time. Many business pandemic plans assume a disaster-type event will be short in duration and that recovery can start immediately.
Primary effect is on staffing levels: Unlike a natural disaster, where any disruption to business services is usually tied to property or business assets, business operation disruptions during a pandemic are mainly caused by human-resource related issues. Businesses should be planning for increased levels of staff absenteeism over an extended period of time.
A pandemic may have other impacts on business. For example:
- The provision of essential services like telecommunications, financial services, energy supplies, and logistics may all be disrupted. The news has already reported disruptions to some air travel, increased border security, and disruption in manufacturing and supply chain operations tied to China;
- Supplies or materials needed for ongoing business activities may be disrupted;
- The availability of services from subcontractors may be affected; and
- Demand for business services may be affected.
For updates on COVID-19, information is being regularly provided from the following sources:
- Public Health Agency of Canada website or information hotline: 1-833-784-4397
- World Health Organization
- Government of Canada Travel Advice and Advisories
- Provincial health and safety agencies and Chief Medical Officers of Health.
Key workplace issues
- What if my employee(s) contract COVID-19?
Employees who contract COVID-19 should be prohibited from attending the workplace. However, and importantly, these individuals should be treated like any other sick employee. For example, employees who contract COVID-19 may be eligible to claim benefits under a sick leave policy or a disability benefits plan.
Further, most provincial employment standards legislation now provides employees with limited paid or unpaid sick and/or personal days, which could be accessed by an employee in the event s/he, or a family member, becomes ill due to COVID-19. In Alberta, the Employment Standards Code provides that employees who have been employed for at least 90 days are entitled to five days of unpaid leave for personal illness or family responsibility, and up to 16 weeks of unpaid job-protected leave for long-term illness.
In the absence of company paid sick leave benefits or disability benefits coverage, employees may be entitled to sickness benefits under the Employment Insurance Act (Canada). Under this Act, employees who face a reduction in normal weekly earnings of at least 40% because of illness, injury, or quarantine are eligible for EI sickness benefits, provided they have accumulated sufficient insurable hours. During the 2003 outbreak of SARS, the federal government implemented special loss of income relief for certain affected employees. A similar extension of EI sickness benefits may be implemented if the coronavirus outbreak becomes widespread in Canada.
Employers should also assess their sick leave or employee absenteeism policies with a view to flexibility. In the event of a widespread COVID-19 outbreak in Canada, obtaining medical certificates for any illness may be difficult or delayed, and place undue pressure on an already overburdened health care system.
- What if my employee(s) is potentially exposed to COVID-19 and must self-isolate or be quarantined?
Another issue that may arise for employers is the circumstance where an employee is not ill but is unable to attend work due to a potential exposure, a direction to self-isolate, or is quarantined. Generally, there is no legal obligation to pay employees who are unable to attend at or carry out work. For employees who are not sick, employers should review their workplace policies and be prepared to extend paid leave, or allow employees to access vacation or to work remotely. Employers should also consider whether certain sick leave benefits can be provided on a gratuitous basis.
What is important to note is that if employers request that an employee stay away from the workplace, due to recent international travel, sickness, or other reasons, there is arguably an obligation upon the employer to pay these employees. If possible, in this type of circumstance, employers should provide employees with meaningful work to conduct remotely.
- What if my employee goes to a COVID-19 ‘hot zone’ despite travel and safety warnings, or travels generally?
Employers should be taking steps now to communicate to employees that their employment and pay may be impacted by quarantine, a requirement to self-isolate, or any other delay that may result in an extended leave from the workplace. For example, if an employee elects to travel to a ‘hot zone’ (e.g., Italy or Iran) during a planned period of vacation leave that was scheduled prior to the COVID-19 outbreak, despite travel advisories recommending otherwise, an employer should inform the employee in advance that a self-isolation or quarantine period post-vacation is mandatory and unpaid.
Employees who elect to travel for personal reasons to any location should be advised to follow Government of Canada Travel Advisories, and also be reminded that the spread and location of COVID-19 is changing daily. Prior to an employee returning to work, the employer should confirm that the employee has no symptoms of illness.
Depending on where the employee travelled and the nature of the employer’s business, the employee may be returned to work or requested to self-isolate. Whether an employee is paid for that isolation period will depend on where the employee travelled, the nature of the workplace, whether remote work is available, and any potential collective agreement requirements. Each situation must be assessed on a case-by-case basis, and there may be circumstances where requesting an employee stay off work without pay will be reasonable.
- How do I ensure that my workplace is safe for employees?
Employers have a positive obligation under the Occupational Health and Safety Act (Alberta) to provide employees with a safe work environment. Employers should encourage employees who are sick to stay home, advise all employees to practice good hand sanitization techniques, and review the extent of business travel that is required.
If an employee is refusing to work due to a fear of contracting COVID-19 in the workplace, the employer must respond in compliance with their legal duties under provincial Occupational Health and Safety Act or federal legislation in other jurisdictions. Importantly, all jurisdictions in Canada have legislation allowing workers to refuse work they believe is unsafe, and an employer is prohibited from taking disciplinary action against an employee on this basis. Employers are generally required to investigate the employee’s concern and attempt to resolve the issue within the workplace. Where no resolution is reached, the employer’s decision may be investigated by the responsible government authority in that jurisdiction.
To assist in meeting an employer’s responsibility to ensure a safe work environment, McLennan Ross has prepared a checklist to assist employers in their COVID-19 pandemic planning, which can be accessed at https://news.mross.com/12/161/uploads/mr-pandemic-planning-checklist.pdf.
- Is COVID-19 a disability?
Employers should be cognizant of their obligations under the Alberta Human Rights Act, or other equivalent provincial or federal legislation. Human rights legislation prohibits discrimination and harassment in employment, in part, on the basis of a disability. Although coronavirus has not yet been recognized as a disability for the purpose of human rights legislation, employers should not treat employees differently who have contracted COVID-19 or are required to self-isolate.
The Alberta Human Rights Act, and other equivalent provincial or federal legislation, prohibit discrimination on the basis of race, ancestry, place of origin, and ethnicity (these grounds may vary by jurisdiction). Employers should avoid making assumptions based on these grounds that could adversely affect employment for a specific individual. For example, treating employees differently on the basis of a perceived risk of COVID-19 (e.g., employees who are members of the Iranian community) may amount to discrimination.
- How do I plan for a business disruption or workplace adjustments?
COVID-19 has already significantly disrupted businesses and the supply chain across the globe. Should COVID-19 spread widely across Canada, it can be expected that most businesses will be impacted to some extent. Employers in the areas of tourism, hospitality, and other industries that promote large gatherings, such as sporting events and retail, would be significantly impacted. Employers should be reviewing emergency and business disruption plans, considering which employees can carry out duties remotely, and ensuring that they complete cross-training of staff for critical positions, like payroll and communications.
Specific considerations and plans should be made for the closure of schools, which is currently occurring in areas within Canada, as well as Italy, Japan, and other countries. School closures will undoubtedly result in many employees seeking absences from the workplace, and such absences may fall under human rights protections due to family status.
Employers should also consider and review temporary layoff provisions under sections 62 to 64 of the Alberta Employment Standards Code or equivalent provisions in provincial or federal employment standards legislation, which allow employers to temporarily lay off employees for up to 60 days within a 120-day period. In Alberta, temporary layoff notices must be given to employees in writing and specifically detail sections 62 to 64 of the Alberta Employment Standards Code. Furthermore, one to two weeks’ advance notice must be given to the employee (depending on length of service). Employees who have been temporarily laid off for more than 60 days within a 120-day period are deemed to be terminated.
Practical recommendations and risk management
All employers should be taking proactive steps to ensure the protection of its workplace and the safety of its employees. We suggest employers take the following actions as they flesh out their COVID-19 response plans:
- Employers should prepare a comprehensive pandemic plan.
- The employer should designate an individual or form a team to monitor COVID-19 in the workplace and to coordinate prevention efforts.
- The employer should provide information about COVID-19 to employees and outline symptoms and criteria to watch for.
- The employer should clearly communicate what steps an employee is required to take if s/he begins to experience symptoms.
- Employees should be advised of the circumstances in which the employer will require an employee to self-isolate or be quarantined, and what effect that self-isolation or quarantine period will have on their compensation.
- Employers should consider their policy and response to a circumstance in which a symptomatic employee, or an employee who has contracted COVID-19 but has not reported symptoms, has attended to work and where the site or facility at large may have been exposed to COVID-19.
- Employees should be encouraged to wash their hands frequently. Signs should be posted in appropriate areas in this regard. Employers can also consider offering hand sanitation supplies.
- Employees should be required to advise their local HR/Office Manager of his or her vacation plans, providing the names of all cities s/he will be visiting or connecting through, particularly if traveling to “hot zones.”
- Depending on the progress of the virus within Canada, employers ought to consider revising their travel and travel-reporting policies with respect to “hot zone” areas. Employers should also confirm with their benefits and disability providers whether employees who have travelled to one of these zones will have coverage if they contract COVID-19.
- Contingency plans should be developed to limit possible work interruptions for those who perform essential duties in the workplace.
Erin Ludwig is a Partner and Rebecca Silverberg is an Associate Partner at McLennan Ross LLP.
Editor’s note: This article was originally published in the April 2020 issue of Electrical Business, and has been updated to reflect current infection numbers at the time of publishing.