Pandemic Preparedness for Employers: All Your Questions Answered
With the WHO announcing a pandemic, and the Federal government announcing that 30-70% of Canadians are likely to get Covid-19, we're into uncharted territory in workplace relationships. Employers aren't sure how to protect their employees, their customers, their brands, and their bottom lines.
Below, I will address some of the common employer questions to deal with the pandemic, in general terms. Three things to bear in mind:
Firstly, courts and tribunals have never before wrestled with the question of employer rights and obligations during a pandemic, so, while my analysis is based on a reasonable extrapolation of existing common law and statutory doctrines, there's a degree of uncertainty here.
Secondly, employment relationships can vary substantially. Certain rules and doctrines apply differently, or not at all, in different sectors, and collective agreements (for unionized employees) change a great deal of the analysis. The below discussion deals primarily with non-union environments, and may not apply to union environments.
Thirdly, the pandemic is progressing rapidly, and a reasonable management approach today (March 12, 2020) might not remain applicable for long into the future.
Employers have obligations to maintain a safe and healthy work environment, and would be well-advised to take a close look at their work environment for transmission risks.
Do your employees have close contact with members of the public? Do they work in close quarters with each other? Touch shared surfaces, tools, or other objects? If your employees are getting water from the water cooler or lunch room fridge, do they have to press their cup against the mechanism These are the kinds of things you're looking for.
Most employers need to make changes. Limit unnecessary close contact. No handshakes. Have employees work remotely, where possible. Have meetings over videoconferencing instead of in person. Send digital documents instead of hard copies. Enhance personal space within the workplace. Make sure that hand-washing stations and hand sanitizer are readily available at all times - with notices, as pedantic as they may seem, with instructions on how to wash your hands properly. (The WHO has a pretty good diagram for this.) Where shared tools or equipment are involved, make disinfectant wipes available, and have staff wipe them down before and after use.
These changes all need to be communicated to affected employees and customers. Implement a policy - on an interim basis, just by way of an announcement through your ordinary communications methods - and post notices where people will see it.
Make it clear, to the extent that you can, that these changes are precautionary and no reason to panic, but that it is important that everybody follow the directions, for their own safety, and the safety of their co-workers, customers, and family members.
Sick notes and benefits
As well, review your sick policy. While it is generally best practice to discourage employees from coming to work sick, and to refrain from requiring sick notes to justify short-term absences, a pandemic situation calls to emphasize both points, and perhaps relax the nature of the absence permissible without medical documentation: Where an employee needs to self-isolate for two weeks on a precautionary basis, it is counterproductive (and not at all useful) to require them to go to the doctor to get a note.
There is no requirement to implement or extend any sick pay or short-term disability benefits; however, it may be prudent for the organization to consider doing so nonetheless: If employees cannot afford a precautionary quarantine, it increases the organizational risk substantially, as will be seen below.
The first question here is important: Why do you think they've been exposed?
There's a spectrum here - from somebody who just came back from an outbreak zone and is showing symptoms, to a person whom customers and co-workers are uncomfortable dealing with because they are of an ethnicity associated with an outbreak zone.
If you take action based strictly on race or ethnicity, then you're probably violating your obligations under human rights legislation. Taking actions based on an unreasonable, arbitrary, or inconsistent risk assessment also raises your exposure to legal liability. Employees generally have a reasonable expectation that the employer is not going to remove them from the workplace.
But if there's a reasonable factual basis for thinking that somebody is at a high risk of having been exposed, it is probably reasonable - and possibly even required - for an employer to remove them from the workplace for a period of time. If an employee comes back from an outbreak zone, I very much doubt that a court is going to seriously second-guess an employer's decision to remove that individual from the workplace as a 'pandemic management' strategy.
With or Without Pay?
However, the question of whether or not the employer is required to continue to pay that individual...is a much stickier question. There is a very compelling legal argument that, absent an express or implied contractual provision to the contrary, it is a constructive dismissal for an employer to remove an employee from the workplace for a period of time without pay. This is a fairly well-established rubric, and while it has obviously never been applied in the context of a pandemic quarantine, there is nothing about this situation that, on first principles, warrants a different treatment.
While the Federal government is pursuing mechanisms to ease the hardship on employees for mandatory quarantines, by removing the waiting period for EI benefits, that doesn't necessarily let employers off the hook. (I say this being very cognizant of the hardship that providing such paid leave will impose upon small and mid-size businesses. In my view, the Federal government's approach here misses the mark. EI isn't the right framework to deal with this; we need wage subsidies for employers paying quarantined employees.)
In most cases, the extent of the employer's liability is going to be the employee's wages over the period of time of the mandatory quarantine. Constructive dismissal or not, the courts are generally going to expect that employees will return to the workplace after the mandatory quarantine ends.
(NB: When I say 'mandatory quarantine', I really mean a mandatory workplace absence for the purpose of a self-quarantine. Employers don't generally have any right to compel or require employers to isolate themselves; they are fully entitled only to require employees to stay out of the workplace.)
Many businesses have shut down entire workplaces in this scenario - that sets a baseline expectation: A full two-week quarantine for all staff. As above, you probably have to pay your employees through that period of time.
That's a crisis-level decision for a business, though it may be that, as the pandemic progresses, this expectation will weaken.
For the time being, at least, the bare minimum expectation will be this: Mandatory quarantines for all employees with direct contact with the infected individual, robust cleaning and disinfecting of all objects and surfaces with which the individual may have had contact; and additional precautionary measures for any high-risk individuals in the workplace.
Many - perhaps most - of us will become infected during the course of this pandemic. At some point, the focus will shift away from preventing it's spread generally, and more toward protecting people at particularly high risk - the elderly, people with underlying health conditions, etc.
So yes, there absolutely will be an expectation upon businesses to take extra precautions to protect those at high risk. In my view, this expectation is likely to arise under human rights legislation, via the duty to accommodate on the basis of age and disability.
The ordinary accommodation framework applies - an obligation on the employer to provide reasonable accommodations up to the point of undue hardship.
And the specifics of that will vary based on context, but it's a much higher burden than the general obligation under OHS. While I would recommend that employers consider work-from-home protocols now where it's feasible from a business perspective, a vulnerable person asking to work-from home may be entitled to have that request considered on an 'undue hardship' standard.
What it absolutely will mean is providing vulnerable persons with 'clean' space - areas where other workers are not permitted to go unless absolutely necessary, and with strict sanitation and hygiene standards when it is absolutely necessary. (So if I'm a vulnerable person, for instance, I want a hand sanitizer dispenser outside my office door, I want a sign saying "Authorized personnel only", and I want an instruction that even personnel authorized for entry absolutely must use hand sanitizer immediately before entry. Maybe masks, too, if that particular shortage can be resolved.)
Once we get to a certain point of community saturation - and it's actually going to be really tough to gauge that, but I think we're closer than we realize - you won't be able to put your vulnerable workers in close quarters with the general population of your workforce.
Also, employers ordinarily have some flexibility when it comes to deciding accommodation measures. If an employee says "my home workstation is properly ergonomically configured for my back problem, and I'd like to work from there", the employer is probably entitled to go back and say, "No, why don't we just get an ergonomically sound configuration to your workstation at work, instead?" The obligation isn't generally to give the employee his or her preferred accommodation, but to give a reasonable accommodation. However, under these circumstances, that flexibility may be limited, because of risks associated with travel to and from the workplace outside the employer's control. If I have my own vehicle, and travel circumstances where I am unlikely to be exposed during my commute, then that's less of a concern. But for an employee who has to take the bus, or carpool...if they ask to work from home, you may need to go straight to an 'undue hardship' analysis on that particular request.
Determining Your Vulnerable Workers
So how do you gauge who is 'vulnerable'? This is one of those areas where age stereotypes might mean something, because age, simpliciter, is a risk factor. So you might be able to justify imposing accommodations on the basis of age alone, but I am, as a general rule, very hesitant to start imposing any sort of accommodation on an individual without discussing with them what they want or feel is appropriate.
As to other types of vulnerability, as with any type of disability, you can't accommodate what you don't know about, but you also can't turn a blind eye to something that you might otherwise infer. In general, you would want to wait for vulnerable persons to seek accommodation, but there may well be scenarios where you are already aware of an underlying disability, or where you have picked up on signs of disability, where you might well be obligated to start the conversation yourself as to whether the employee requires any accommodation for extra protection against infection.
Similarly, the analysis may not be limited to employees who are, themselves, vulnerable. If a worker has a vulnerable person in their household (spouse, child, parent, etc.), that may lead to similar obligations.
Conclusion
This is an issue that we all need to pay attention to - as a matter of occupational health & safety; human rights; public health; and simple human compassion, we need to take this pandemic very seriously, and try to minimize the spread, and in particular work to protect vulnerable individuals. The demands upon employers are high in this regard, but approached with a degree of good faith, common sense, and due diligence, it's not generally difficult to see a path forward.
*****
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.
Below, I will address some of the common employer questions to deal with the pandemic, in general terms. Three things to bear in mind:
Firstly, courts and tribunals have never before wrestled with the question of employer rights and obligations during a pandemic, so, while my analysis is based on a reasonable extrapolation of existing common law and statutory doctrines, there's a degree of uncertainty here.
Secondly, employment relationships can vary substantially. Certain rules and doctrines apply differently, or not at all, in different sectors, and collective agreements (for unionized employees) change a great deal of the analysis. The below discussion deals primarily with non-union environments, and may not apply to union environments.
Thirdly, the pandemic is progressing rapidly, and a reasonable management approach today (March 12, 2020) might not remain applicable for long into the future.
What should we do, proactively, now that the WHO has announced a pandemic?
Employers have obligations to maintain a safe and healthy work environment, and would be well-advised to take a close look at their work environment for transmission risks.
Do your employees have close contact with members of the public? Do they work in close quarters with each other? Touch shared surfaces, tools, or other objects? If your employees are getting water from the water cooler or lunch room fridge, do they have to press their cup against the mechanism These are the kinds of things you're looking for.
Most employers need to make changes. Limit unnecessary close contact. No handshakes. Have employees work remotely, where possible. Have meetings over videoconferencing instead of in person. Send digital documents instead of hard copies. Enhance personal space within the workplace. Make sure that hand-washing stations and hand sanitizer are readily available at all times - with notices, as pedantic as they may seem, with instructions on how to wash your hands properly. (The WHO has a pretty good diagram for this.) Where shared tools or equipment are involved, make disinfectant wipes available, and have staff wipe them down before and after use.
These changes all need to be communicated to affected employees and customers. Implement a policy - on an interim basis, just by way of an announcement through your ordinary communications methods - and post notices where people will see it.
Make it clear, to the extent that you can, that these changes are precautionary and no reason to panic, but that it is important that everybody follow the directions, for their own safety, and the safety of their co-workers, customers, and family members.
Sick notes and benefits
As well, review your sick policy. While it is generally best practice to discourage employees from coming to work sick, and to refrain from requiring sick notes to justify short-term absences, a pandemic situation calls to emphasize both points, and perhaps relax the nature of the absence permissible without medical documentation: Where an employee needs to self-isolate for two weeks on a precautionary basis, it is counterproductive (and not at all useful) to require them to go to the doctor to get a note.
There is no requirement to implement or extend any sick pay or short-term disability benefits; however, it may be prudent for the organization to consider doing so nonetheless: If employees cannot afford a precautionary quarantine, it increases the organizational risk substantially, as will be seen below.
What can I do about a potentially-exposed individual who wants to come to work?
The first question here is important: Why do you think they've been exposed?
There's a spectrum here - from somebody who just came back from an outbreak zone and is showing symptoms, to a person whom customers and co-workers are uncomfortable dealing with because they are of an ethnicity associated with an outbreak zone.
If you take action based strictly on race or ethnicity, then you're probably violating your obligations under human rights legislation. Taking actions based on an unreasonable, arbitrary, or inconsistent risk assessment also raises your exposure to legal liability. Employees generally have a reasonable expectation that the employer is not going to remove them from the workplace.
But if there's a reasonable factual basis for thinking that somebody is at a high risk of having been exposed, it is probably reasonable - and possibly even required - for an employer to remove them from the workplace for a period of time. If an employee comes back from an outbreak zone, I very much doubt that a court is going to seriously second-guess an employer's decision to remove that individual from the workplace as a 'pandemic management' strategy.
With or Without Pay?
However, the question of whether or not the employer is required to continue to pay that individual...is a much stickier question. There is a very compelling legal argument that, absent an express or implied contractual provision to the contrary, it is a constructive dismissal for an employer to remove an employee from the workplace for a period of time without pay. This is a fairly well-established rubric, and while it has obviously never been applied in the context of a pandemic quarantine, there is nothing about this situation that, on first principles, warrants a different treatment.
While the Federal government is pursuing mechanisms to ease the hardship on employees for mandatory quarantines, by removing the waiting period for EI benefits, that doesn't necessarily let employers off the hook. (I say this being very cognizant of the hardship that providing such paid leave will impose upon small and mid-size businesses. In my view, the Federal government's approach here misses the mark. EI isn't the right framework to deal with this; we need wage subsidies for employers paying quarantined employees.)
In most cases, the extent of the employer's liability is going to be the employee's wages over the period of time of the mandatory quarantine. Constructive dismissal or not, the courts are generally going to expect that employees will return to the workplace after the mandatory quarantine ends.
(NB: When I say 'mandatory quarantine', I really mean a mandatory workplace absence for the purpose of a self-quarantine. Employers don't generally have any right to compel or require employers to isolate themselves; they are fully entitled only to require employees to stay out of the workplace.)
One of my employees just tested positive for Covid-19. They've been in the workplace up to now. What do I do?
Many businesses have shut down entire workplaces in this scenario - that sets a baseline expectation: A full two-week quarantine for all staff. As above, you probably have to pay your employees through that period of time.
That's a crisis-level decision for a business, though it may be that, as the pandemic progresses, this expectation will weaken.
For the time being, at least, the bare minimum expectation will be this: Mandatory quarantines for all employees with direct contact with the infected individual, robust cleaning and disinfecting of all objects and surfaces with which the individual may have had contact; and additional precautionary measures for any high-risk individuals in the workplace.
Some of my employees are high risk for complications if they become infected. Do I have any special obligations for them?
Many - perhaps most - of us will become infected during the course of this pandemic. At some point, the focus will shift away from preventing it's spread generally, and more toward protecting people at particularly high risk - the elderly, people with underlying health conditions, etc.
So yes, there absolutely will be an expectation upon businesses to take extra precautions to protect those at high risk. In my view, this expectation is likely to arise under human rights legislation, via the duty to accommodate on the basis of age and disability.
The ordinary accommodation framework applies - an obligation on the employer to provide reasonable accommodations up to the point of undue hardship.
And the specifics of that will vary based on context, but it's a much higher burden than the general obligation under OHS. While I would recommend that employers consider work-from-home protocols now where it's feasible from a business perspective, a vulnerable person asking to work-from home may be entitled to have that request considered on an 'undue hardship' standard.
What it absolutely will mean is providing vulnerable persons with 'clean' space - areas where other workers are not permitted to go unless absolutely necessary, and with strict sanitation and hygiene standards when it is absolutely necessary. (So if I'm a vulnerable person, for instance, I want a hand sanitizer dispenser outside my office door, I want a sign saying "Authorized personnel only", and I want an instruction that even personnel authorized for entry absolutely must use hand sanitizer immediately before entry. Maybe masks, too, if that particular shortage can be resolved.)
Once we get to a certain point of community saturation - and it's actually going to be really tough to gauge that, but I think we're closer than we realize - you won't be able to put your vulnerable workers in close quarters with the general population of your workforce.
Also, employers ordinarily have some flexibility when it comes to deciding accommodation measures. If an employee says "my home workstation is properly ergonomically configured for my back problem, and I'd like to work from there", the employer is probably entitled to go back and say, "No, why don't we just get an ergonomically sound configuration to your workstation at work, instead?" The obligation isn't generally to give the employee his or her preferred accommodation, but to give a reasonable accommodation. However, under these circumstances, that flexibility may be limited, because of risks associated with travel to and from the workplace outside the employer's control. If I have my own vehicle, and travel circumstances where I am unlikely to be exposed during my commute, then that's less of a concern. But for an employee who has to take the bus, or carpool...if they ask to work from home, you may need to go straight to an 'undue hardship' analysis on that particular request.
Determining Your Vulnerable Workers
So how do you gauge who is 'vulnerable'? This is one of those areas where age stereotypes might mean something, because age, simpliciter, is a risk factor. So you might be able to justify imposing accommodations on the basis of age alone, but I am, as a general rule, very hesitant to start imposing any sort of accommodation on an individual without discussing with them what they want or feel is appropriate.
As to other types of vulnerability, as with any type of disability, you can't accommodate what you don't know about, but you also can't turn a blind eye to something that you might otherwise infer. In general, you would want to wait for vulnerable persons to seek accommodation, but there may well be scenarios where you are already aware of an underlying disability, or where you have picked up on signs of disability, where you might well be obligated to start the conversation yourself as to whether the employee requires any accommodation for extra protection against infection.
Similarly, the analysis may not be limited to employees who are, themselves, vulnerable. If a worker has a vulnerable person in their household (spouse, child, parent, etc.), that may lead to similar obligations.
Conclusion
This is an issue that we all need to pay attention to - as a matter of occupational health & safety; human rights; public health; and simple human compassion, we need to take this pandemic very seriously, and try to minimize the spread, and in particular work to protect vulnerable individuals. The demands upon employers are high in this regard, but approached with a degree of good faith, common sense, and due diligence, it's not generally difficult to see a path forward.
*****
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.
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