First published 13th March 2020. Last updated 19th October 2020.
Q. What should I do if an employee refuses to come back to work due to COVID-19?
A. Health and safety legislation gives a worker the right to refuse work that he or she reasonably believes is unsafe to himself/herself or another worker. In the case of a COVID-19 related refusal, you are advised to follow these steps:
Speak to the refusing employees to understand the nature of their concern. If the situation cannot be resolved with this discussion, then proceed to step 2.
Conduct an internal investigation to determine the validity of the work refusal.
If it is determined that there is no objective risk, but the refusing employees maintain their refusal, you must contact the applicable workplace health and safety agency/ministry to perform its own official investigation.
If the applicable workplace health and safety agency/ministry confirms the absence of risk and the refusing employees continue to refuse to return to work, then they may be disciplined.
Q. Do I have to accept work from home requests and what do I do if I don’t have the right equipment for my staff?
A. The employee must have a valid reason to request a work from home arrangement. For instance, if due to pre-existing health conditions or age, the employee falls into a high-risk category and may develop complications if he/she contracts COVID-19. Or if the employee needs to look after his/her children at home in the absence of child support. If the reason is any grounds protected by human rights legislation, then the employer has a duty to accommodate the employee to the point of undue hardship.
You must also provide the employee with resources to be able to safely and comfortably work from home.
If working from home is simply not an option given the nature of the employee’s work responsibilities, you could offer the employee alternative work that can be done remotely.
If that is not possible, you could either place the employee on a COVID-19 leave of absence or (if their work contract allows it or the employee consents) temporarily layoff the said employee.
Q. Do the normal statutory sick leave entitlements apply if the employee is on a leave of absence due to COVID-19?
A. Most provinces have amended their employment standards legislation to include an unpaid, job-protected leave of absence due to COVID-19 related reasons. You may provide pay if you wish to as an additional benefit. But you are not required to do so by law.
The name of this leave and requirements vary by jurisdiction and employers should check for the latest updates on this in their province.
Refer to the following links for additional information:
Alberta: https://www.alberta.ca/covid-19-leave.aspx
British Columbia: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/time-off/leaves-of-absence#types
Q. My employee has plans to travel abroad for personal reasons and I’ve already approved their annual leave, can I stop them from going?
A. No. While you can justify cancelling business travel, you might put yourself at risk of indirect discrimination claims if you stop employees travelling to a specific location for personal reasons.
To ensure health and safety in the workplace, you may, however, ask your staff to quarantine for the recommended period after they return from their vacation.
If the employee is asymptomatic, you may also provide the employee with the option to work from home and conduct meetings remotely (e.g. via telephone or video conference).
- Do my employees have to take a vacation day to get tested for COVID-19?
- Yes. If a non-symptomatic employee is going to get tested, they would need to take the day or half the day off, depending on how much time they need. Employers are not obligated to pay for work hours missed due to this reason.
If your employee is experiencing symptoms of COVID-19, or they fear they may have been exposed, they should not come to work. They must self-isolate at home and book an appointment at a testing centre.
Q. What should I do if an employee tests positive for COVID-19 at work?
A. We recommend the following steps:
Ask the affected employee to go home right away to reduce the risk of transmission.
Review office spaces where the employee has been since the onset of symptoms. Thoroughly clean and disinfect the said areas immediately. Remember to clean and disinfect touch points such as door handles, elevator buttons, desks, chairs, coffee machine, any computer or electronic equipment, etc.
Ensure the worker promptly contacts the public health authority in your province. Public Health will speak to the affected employee and prepare a list of names of people who may be at risk. These individuals will be contacted and asked to either:
a) Monitor their symptoms.
b) Self-isolate for 14 days from the onset of symptoms in the employee who tested positive.
Do not share the name of the affected worker with the rest of the staff. You should, however, let your employees know that there has been a COVID-19 case in the workplace. Apprise them of the measures you have implemented to ensure their safety. Advise them to take an online COVID-19 self-assessment, even if they have not been in contact with the affected employee.
The affected employee will be on COVID-19 leave till he/she recovers.
Q. My business is at risk of exposure to COVID-19. If I decide to temporarily close my business, do I still need to pay my staff?
A. Workplace closures may be considered in exceptional circumstances and should be based on a risk assessment. This may be the case if it is not possible to follow social distancing in the workplace and operate it according to Public Health guidance.
If you need to close your business, you can temporarily layoff your employees.
The parameters of temporary layoffs are set out in applicable employment standards legislation. Layoffs may only be permissible if employees’ written employment agreements provide for temporary layoffs or if the employees consent to a temporary layoff.
In British Columbia, the acceptable length of a temporary layoff is 13 weeks in a 20-consecutive week period. To extend a temporary layoff due to COVID-19, employers and employees can together apply to the Employment Standards Branch for a variance.
In Alberta, the maximum duration of a temporary layoff at present is 90 days total in a 120-day period. This applies to all layoffs that started on or after June 18, 2020. But a temporary layoff in Alberta can be extended beyond the maximum limit if a worker consents to receive wages or benefit payments in lieu of a fixed limit of the duration of a layoff.
Through a temporary amendment to the ESA, Ontario has suspended temporary layoffs. All non-unionized employees who have been laid off or had their work hours or wages reduced due to the pandemic, are considered to be on an Infectious Disease Emergency Leave. This leave is unpaid, and job protected. This change will stay in effect till the COVID-19 period ends on January 2, 2021.
Previously under ESA, businesses in Ontario had to terminate and pay severance to employees laid off for more than 13 weeks.
If an employee is laid off for a period longer than a temporary layoff as set out in applicable legislation, the employer is considered to have terminated the worker’s employment. Generally, the employee will then be entitled to termination pay.
Q. Can I fire workers who refuse to wear face masks?
A. Face masks help reduce the risk of COVID-19 transmission. In many cities, like Toronto and Edmonton, face masks are required by law in indoor public spaces. We advise that employers research the specific requirements for face coverings in their jurisdiction to make sure they are following the law. If close contact with the public is part of your daily operations and social distancing is not possible in your workplace, your staff must wear face masks.
You can enforce the requirement for wearing face masks by having a clear policy that requires all employees to wear face coverings in the workplace. If employees still do not comply, you can take disciplinary action, including termination. Employers should also provide the necessary personal protective equipment and training on how to use it to their staff. Please note that you must accommodate employees who cannot wear face masks due to a disability or a medical condition.
Final thoughts:
- Educate and update employees
- Review and rely on policies
- Use public health resources
- Keep legal obligations in mind, i.e. – human rights, employment standards, privacy, employment insurance, occupational health and safety
- Continue to monitor and be prepared to adapt
- If necessary, create task force/working group
- Update emergency contact information/systems