COVID Isolation and Workplace Absence - Who Pays?

With schools reopening, there are already lots of kids being isolated on a 'close contact' basis - leaving parents and others, and their employers, in a situation of wondering whether the contacts of those children should also be isolating.

But the financial concerns of self-isolation, for both employers and employees, are serious and legitimate. Employees don't want to stay home from work if it means that they don't get paid; employers are legitimately reluctant to pay employees who are unable to perform work.

Before we get into the nuts and bolts here, a few preliminary notes:

1. There's no case law on any of this. I can extrapolate reasonable conclusions based on existing principles, but COVID may well change how these principles are interpreted and applied, so it's hard to say anything with confidence.
2. The below assumes that no sick benefits or short-term disability benefits are engaged. There may be scenarios where that changes the analysis, but there's going to be enough variability in terms of the specific eligibility criteria to be paid for sick time that I'm not prepared to speculate about it in the abstract.
3. Similarly, I'm assuming that no meaningful portion of an employee's duties can be performed remotely - i.e. that while the employee is being isolated, they're not performing the core functions of their jobs. In cases where employees are still able to work in isolation, different considerations apply.
4. I'm specifically not talking about the childcare side of these scenarios - where workers might need to stay home to attend to their kids isolation. That raises a different range of issues.

Who Has To Isolate?

There are a series of Alberta Public Health Orders governing mandatory isolation, under various circumstances.  The guts are set out in CMOH Order 05-2020, though there are other amendments and clarifications that don't significantly affect the discussion here.

In a nutshell, you need to self-isolate if you develop certain symptoms (cough, fever, shortness of breath, runny nose, sore throat) not connected to a pre-existing illness or health condition; you need to self isolate if you had close contact with somebody who tests positive; or return from international travel.  There's a caveat in that, if you're symptomatic but have no known contact with positive cases, then you can end your isolation if you get a negative test result. (There are other special treatments and definitions to parse, but I'm not going into that.)

Outside of that, there's no mandate to isolate, though there are circumstances where an 'abundance of caution' might reasonably lead a person to do so anyways. Importantly, there's no 'flow-through' of precautionary isolation to close contacts of people who have not tested positive. If a member of my household has to isolate because she has developed symptoms, or because she has close contact with a confirmed case, OR BOTH, that doesn't impose any requirement on me to self-isolate.

Yet, to varying degrees depending on circumstances, one might nonetheless think it's a good idea for me to consider isolating regardless.

So a couple of other questions arise: Can an employer impose a pandemic leave on circumstances not covered by the public health orders?  And under what circumstances does such a leave have to be paid?  I addressed both of these questions back in early March, but the dimensions of the issues are somewhat changed by having a mandatory isolation framework.

Can The Employer Impose a Leave?

In March, I argued that, if you have a reasonable basis for keeping the employee out of the workplace, it's probably okay.

The reality is that, on conventional legal analyses, this is questionable. Ostensibly, the implied terms and conditions of a contract limit an employer's ability to unilaterally send an employee home; but my view was and is that adjudicators will grant employers a degree of latitude in making good faith and reasonable decisions that somebody shouldn't be in the workplace.

The public health orders may or may not change this analysis. On the one hand, by creating a framework of circumstances where employees are required to stay home from work, they've arguably supplanted the 'good faith and reasonable' decision-making process that I figured adjudicators would permit. On the other hand, a one-size-fits-all approach doesn't necessarily address the needs of all workplaces: An employer that works with high-risk demographics, for instance, might reasonably have a higher safety bar than an employer who doesn't.

So, at the end of the day, I'm still left with the view that a reasonable and good faith decision to keep someone out of the workplace will likely be permissible.

Who Bears the Loss?

If an employee is required to stay home, then somebody takes a hit - the employee loses wages, or the employer has to pay wages for work not performed.

It's far from ideal, all around.

In my March article, I argued that employer-mandated leave likely had to be paid. The public health orders almost certainly change that: When an employee is legally obligated to self-isolate, then that's a matter between the employee and the government, and there's no basis in contract or otherwise to suggest that the employer should have to pay for services that the employee could not legally perform.

But there are still exceptions to that. Firstly, cases where the employer requires a leave that is not within the scenarios contemplated by the public health orders; and secondly (maybe) in cases where the isolation requirement can be tracked to the workplace itself.

Employer-Mandated Leaves

If and when the employer steps outside the clear categories delineated by the Ministry of Health and requires somebody to stay out of work even though they are not required to self-isolate, then we're back into the framework I talked about in March.

In fact, I think there's a clearer argument for it now then there was in March. Effectively, the employer is saying that the public health orders may be all well and good, but for whatever reason it does not provide adequate protection for the employer's own operations - by going outside the scope of the public health orders, the employer is no longer able to make a morally compelling 'public health' based argument to defend these measures: It's now about protecting the employer's interests (client safety and confidence; business continuity; meeting its own occupational health and safety obligations; etc), and the employer is reasonably expected to bear the cost of such measures.

Moreover, if we're talking about a scenario where a parent is being forced into a leave because they have a child who is on a precautionary self-isolation, there's a risk of a claim for discrimination on the basis of family status, which risk is substantially mitigated if the leave is paid.

Workplace-Originating Requirement for Isolation

What if I need to self-isolate because of a close contact that occurred in the workplace?

This is the much tougher question. Ordinarily, we don't talk much about contagion-based liabilities, in part because it can be so tough to determine the origin of a contagion. Even in this context, the other isolation categories would not likely engage such an analysis: If I test positive, how could I ever prove that I picked it up in the workplace? If I have to self-isolate because I develop a cough, I certainly can't prove that's the employer's fault.

But in a scenario of an otherwise healthy individual being required to self-isolate for no other reason than close contact with a client of the business, my view is that employers should be prepared to bear the resulting loss.

This obligation doesn't arise out of statute or contract; my view is that a 'close contact' isolation does not likely engage a workers' comp analysis, and the scenario seems to be contractually indistinguishable from one where the exposure was outside the workplace.

But there's a sense of something wrong with that: That I can be exposed to a dangerous pathogen in the course of my employment, and then the employer can say, "Well, I guess you need to take two weeks' unpaid leave because of that; tough luck for you"...seems unjust.

There may be a more nuanced contractual argument to be made, or there may be an argument to be made in tort. At minimum, it's fair to say that a claimant in such circumstances would be pretty sympathetic - if an employee, having interacted with the employer's client at the direction of the employer, ends up having to self-isolate as a result of that interaction, I think most people would intuitively think that it's unfair for the employee to have to bear the cost of that isolation.

Conclusion

The general rule, to reiterate, is that there's no flow-through of precautionary self-isolation. If a member of my household tests positive, I have to self-isolate, but merely the fact that a member of my household needs to self-isolate (whether because of a close contact at work or school, or because of symptoms) does not impose any requirement on me to self-isolate.

An employer, in various circumstances, may nonetheless want to ask people to stay away from the workplace even though there's no legal requirement to do so; however, my view is that employers are likely on the hook for the employee's lost wages when the loss results from a choice made by the employer.

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.