Update on COVID-19: What Employers Need to Know

March 2, 2020

On February 28, 2020, the World Health Organization raised the global risk assessment of COVID-19 (also known as Coronavirus) to "very high".

This post is intended to address common issues that have been raised by employers since our last post on this issue (which can be found here).

Changes due to Global Nature of the Pandemic

As of today's date, COVID-19 has spread to more than 50 countries and there have been 15 confirmed cases in Canada.

Given the near-global nature of the outbreak, employers are well advised to issue communications to employees, both to provide information regarding the outbreak and to provide guidelines for how to proceed, should symptoms develop within the employee population. Unfortunately, the general symptoms of COVID-19 can be similar to those of influenza and/or the common cold, making it difficult to identify those who may be affected.

Accordingly, employers need to determine how to manage employees that become symptomatic (fever, dry cough, runny nose, etc.). Employers may require that employees work remotely, remain at home, or receive medical clearance to return to work. However, this issue may be significant for those workplaces that are not compatible with remote work arrangements. Given the rapid progress of COVID-19, we recommend that employers turn their mind to these issues as soon as possible.

In terms of requiring medical clearance to return to work, according to Public Health Ontario, testing for COVID-19 is only permitted if the person is a "Person under Investigation" or a "Probable Case".

  1. "A Person under Investigation" is a person with fever and/or onset of cough or difficulty breathing, and any of the following within 14 days prior to onset of illness:
    a. Travel to an impacted area; 
    b. Close contact with a confirmed or probable case of COVID-19; or
    c. Close contact with a person with acute respiratory illness who has been to an impacted area;
  2. A "Probable Case" is a person with fever (over 38 degrees Celsius) and/or onset of (or exacerbation of chronic) cough, and
    a. Travel to an impacted area;
    b. Close contact with a confirmed or probable case of COVID-19; or
    c. Close contact with a person with acute respiratory illness who has been to an impacted area; and

In whom laboratory diagnosis of COVID-19 is not available, inconclusive, or negative (if specimen quality or timing is suspect).

To date, the following are considered to be impacted areas: China (mainland), Hong Kong, Iran, Italy, Japan, Singapore, and South Korea. Many employees may appear symptomatic and not meet these criteria, and therefore be ineligible for COVID-19 testing.

Traveling During March Break

As we head into March Break, many employees have travel plans.

An employer cannot prevent an employee from travelling during their leisure time. However, we recommend that employees be advised to review the Government of Canada's travel health notices before undertaking any international travel.

Employees should also be required to inform their employer if they will be traveling to any affected area, and advised that, if they travel to an affected area, they may be prohibited from returning to the workplace until they receive medical clearance or have been asymptomatic for at least 14 days.

Temporary Workforce Reductions

COVID-19 has begun to impact supply chains and the global economy. With that in mind, some employers have raised concerns about their ability to sustain their workforce in the coming weeks / months.

Although Ontario's Employment Standards Act, 2000 (the "ESA") contains temporary layoff provisions, the ESA does not give employers a general right to layoff employees.

An employer may only temporarily layoff employees if the right to do so exists within the employment relationship (as an express or implied term of an employment agreement) or with the consent of the employee. Absent a contractual term allowing for a temporary layoff or the consent of the employee, a temporary layoff could give rise to constructive dismissal claims at common law.

In Ontario, a temporary layoff for a non-unionized employee can last:

  • up to 13 weeks of layoff in any period of 20 consecutive weeks; or
  • up to 35 weeks of layoff in any period of 52 consecutive weeks, where:
    • the employee continues to receive substantial payments from the employer; or
    • the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan (such as a medical or drug insurance plan) or a legitimate retirement or pension plan; or
    • the employee receives supplementary unemployment benefits; or
    • the employee would be entitled to receive supplementary unemployment benefits but isn't receiving them because they are employed elsewhere; or
    • the employer recalls the employee to work within the time frame approved by the Director of Employment Standards; or
    • the employer recalls the employee within the time frame set out in an agreement with an employee who is not represented by a trade union.

If an employee is laid off for a period longer than a temporary layoff as set out above, the employer is considered to have terminated the employee's employment.

Before instituting any layoffs, we strongly recommend that you seek advice from experienced counsel.

We are continuing to closely monitor the evolving COVID-19 situation and will provide further updates on this blog. Should you require assistance with any related workplace concerns, please reach out to a member of our Employment Group directly.

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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