Litigation Law Newsletter, Volume 1, Number 3: COVID-19
March Focus
COVID-19
With all that is going on in the world, I wanted to provide you with a few key things to keep in mind regarding employers and employees.
As an employer, it is your duty to ensure that the workplace is safe. Although most businesses have been shutting down, the law as it currently stands does not prevent all businesses in Ontario from continuing to operate. Therefore, if you are continuing to operate, please keep the following in mind as an employer:
- Require employees returning from a high-risk area to immediately report such travel as well as any symptoms. Require such employees to work remotely for 14 days and only return once cleared by a medical professional.
- While layoffs are unfortunate and sad, be careful not to trigger constructive dismissals (i.e., making a substantial change to the terms of the employee’s contract without the employee’s consent, the employee has the option of treating his employment as having been terminated).
- Take the appropriate steps to ensure privacy of medical and health information.
- Consider that employees with a legitimate health and safety work refusal cannot be disciplined or dismissed.
Of late, the question that keeps arising is what happens if an employee refuses to attend the workplace because he fears that it poses a danger to his health and safety, even though the employee is not sick?
For starters, this situation is unprecedented. The legislation with the most applicability to the current situation is the Occupational Health and Safety Act (“the Act”). Under the Act, an employee can refuse to work if he believes the workplace poses a danger to his health or safety. Occupational illness is defined as a condition that results from exposure in a workplace to a physical, chemical, or biological agent to the extent that the normal physiological mechanisms are affected and the health of the worker is impaired. Occupational illness might include exposure to disease-causing bacteria and viruses, for example, or to chemicals or dust.
Until now, we are unaware of any worker who has attempted to rely on the Act as a basis for refusing to attend work because of COVID-19. However, with the current predicament changing rapidly, it won’t be long before this argument is made to the Courts on an urgent basis.
Recent Insights
- February 3, 2021 Webinars It's Not too Late to Ask for Help: Options for Owners as the Pandemic (Hopefully) Winds Down
- February 2, 2021 Webinars CUSBA Presents 9th Annual Cross-Border Economic Forecast
- January 22, 2021 Media Mentions Jeffrey Silver, Gregory Gemignani, and Patrick Sullivan Quoted on Biden Administration Predictions
- January 21, 2021 Webinars Back to the Future: Biden’s Plans for Environmental Regulation and How it Affects Your Business
- January 20, 2021 In the News Dickinson Wright Assists Molded Devices Inc. in its acquisition of Phoenix Manufacturing Ltd.
- January 20, 2021 In the News Nan B. Braley Joins Dickinson Wright Austin Office
- January 19, 2021 Industry Alerts Ohio Governor Signs “Alternate Employer Organization” Legislation
- January 15, 2021 In the News Flavia Campbell Named a Top 100 Lawyer in Arizona by Az Business
- January 15, 2021 Industry Alerts An Important Clarification of the Duty of Honest Contractual Performance