The Wuhan Novel Coronavirus: What Employers Need to Know

January 31, 2020

The recent identification of a third presumptive case of the Coronavirus in Canada has left many employers concerned about their workplaces. As the World Health Organization has now declared the Coronavirus a global health emergency, experts have stressed the need to be alert and prepared to act in response to public health threats posed by the virus in Canada.

Employers are well-advised to be aware of the issues and risks associated with the Coronavirus, to plan ahead, and to be reminded of the lessons learned from Toronto's epidemic of “SARS" and the H1N1 Influenza.

With the above in mind, we have set out below our current views on key questions our clients have raised with us this week:

1. What to Communicate and How to Educate

It is important to remember that most employers are not medical experts. Although employers may want to reassure their employees, employers should avoid speculation or distributing misinformation. Any information provided about the Coronavirus should be brief and reiterate only information that has been issued by official sources, such as:

2.  Prevention Tips

While the situation continues to evolve, Canada's local, provincial, and federal agencies have recommended common-sense precautionary measures also applicable during the cold and flu season, such as frequent handwashing, not touching eyes, nose, and mouth with unwashed hands, avoiding close contact with others who are ill, practicing proper coughing and sneezing etiquette, and cleaning and disinfecting objects and surfaces that are frequently used.

Employers may also wish to reinforce their sick leave policies (including that employees with cold and flu symptoms should stay home), educate employees about the precautions that can be taken (noted immediately above), and distribute hand sanitizer and surface wipes.

Employers should also be prepared to consider accommodations or leaves of absence (whether paid or unpaid) to employees that are directly or indirectly impacted by the Coronavirus.

3.  How to Respond to an Employee Returning from Travel to China

If an employee has recently returned from China, an employer does not need to wait until an employee develops symptoms before inquiring about possible exposure. However, acting on assumption rather than objective fact could risk inadvertently breaching the Human Rights Code.

It is important to note that, according to Public Health Ontario, laboratory testing of the Coronavirus is currently only available:

  1. If the individual is experiencing fever and acute respiratory illness, or has pneumonia; and
  2. the individual was present in Wuhan, China within the 14 days prior to the onset of symptoms.

Employers should begin by gathering the following information:

  1. Has the employee come into close contact with any individual that is believed (or suspected) to be infected with the Coronavirus?
  2. Has the employee experienced any of the symptoms associated with the Coronavirus (including runny nose, headache, cough, sore throat, fever, etc.)?

If an employee who has recently returned from China answers "yes" to either of the above questions, the employee should be advised to seek immediate medical evaluation. In this situation, employers may also wish to have an employee obtain medical clearance before returning to work.

In light of the above, an employer may also wish to require that an employee who is not exhibiting symptoms of the Coronavirus but has travelled to China work from home for a 14-day period (it appears based on current information from Public Health Canada that the virus has an incubation period up to 14 days). Where work from home is not possible, our recommendation is that the employee be paid during their absence from work.

To ensure complete disclosure, employees should also be reminded that they will not suffer adverse employment consequences as a result of their disclosure.

4. How to Manage an Employee's International Travel to China

As of the time of this post, the Government of Canada has issued a "Level 3" travel health notice to avoid all non-essential travel to China and all travel to Hubei province. With that in mind, employers are discouraged from permitting any employee to travel on business to the affected areas.

An employer cannot prevent an employee from voluntarily traveling to China during their leisure time. Each such case will need to be reviewed on a case-by-case basis. However, employees should be:

  1. encouraged to report their international travel to the Company and discouraged from travelling to China; and
  2. advised that if they travel to China, they may be prohibited from returning to work until they receive medical clearance or have been asymptomatic for at least 14 days.

5. How to Respond to an Employee Refusing to Work with a Recent Traveler from China

Under the Occupational Health and Safety Act (the "OHSA"), most employees have a right to refuse to perform work if the employee believes that the workplace is unsafe.

Employees may attempt to assert that working in close proximity to a recent traveler to China would constitute unsafe work due to potential exposure to the Coronavirus.

Employers are prohibited from reprising against employees for exercising or attempting to exercise a work refusal.

The OHSA sets out a specific process that must be followed by the employee in the event of a work refusal. The employer must investigate the asserted work refusal in the presence of a health and safety representative (or joint health and safety committee member, if applicable). If the parties are not able to come to a resolution, the employer must notify the Ministry of Labour.

We recommend you consult with counsel if you receive a work refusal in relation to the Coronavirus.

We are continuing to closely monitor the evolving Coronavirus situation and would be pleased to discuss any related workplace concerns with you. A blog post for Quebec based employers will also be forthcoming.

 

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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