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.