COVID-19 and Your Rights At Work

NOTE: This blog was originally published on March 15. Since then changes to employment laws have come hard and fast. This blog has been comprehensively updated as of March 24, 2020 to capture these changes.

The Novel Corona Virus Disease 2019 or COVD-19 has left many workers in a bind. On the one hand, workers need to be able to work to support themselves and their families. On the other, for reasons of public and personal health, workers may wish to not report to work at this time. In this context this post covers some worker rights and protections in relation to reporting or not reporting to work as guaranteed by the Employment Standards Act (ESA) and the Ontario Human Rights Code (the Code).  

Right to be Free From Discrimination

The Human Rights Code of Ontario (the Code) prohibits discrimination in employment on the basis of various grounds including disability, family status, ethnic origin, place of origin and race. Employers can reasonably apply evidence-based public health restrictions such as those based on an employee having travelled outside of Canada, having been at risk of exposure, or having been sick or quarantined. Federal and public health agencies have recommended that you self-isolate for 14 days if you are returning from travel outside of Canada.

Employers are strictly prohibited from using stereotypes to discriminate against or exclude certain workers from the workplace. As a global pandemic, COVID-19 is not restricted to people of any particular ethnic origin, race or place of origin. A worker’s ethnic origin or place of origin is not a reasonable basis for excluding you from the workplace. If you have not recently travelled or otherwise been at risk for exposure, you should not be singled out by your employer with respect to work restrictions. If the worker is healthy and the workplace is able to operate, individual employees should be allowed to work.

However, as of March 24, 2020, the Government of Ontario has ordered all non-essential business to shut down for 14 days. If you do not work for an essential business, and you are unable to work remotely, you will likely not be able to continue working. The list as it presently stands is quite broad and may allow many Ontario workplaces to remain open.

Expanded Leaves Under the Employment Standards Act

On March 17, 2020, the Government of Ontario declared a state of emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act, closing down schools, day cares, libraries, bars, restaurants (except takeout) and many other public venues. This declaration also triggered s. 50.1 of the Employment Standards Act allowing for unpaid and job-protected Emergency Leaves for employees unable to perform their duties due to a declaration of emergency; subject to an order for quarantine or self-isolation; or to provide care or assistance to a family member or to a relative who is dependent upon the employee’s care.

These narrow protections were significantly expanded on March 19 with the passage in Legislature of the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended s. 50.1 of the ESA to include a number of provisions dealing specifically with designated “infectious diseases” including COVID-19.

Where an infectious disease has been designated, under the new s. 50.1(1.1)(b) an employee may be entitled to an unpaid leave where they wish to “self-isolate”, as long as the employee is acting on information or directions provided by a public health authority. In other words, this section would seem to provide broad protections to all employees who may wish to not come in to work and may want to take an unpaid job-protected leave to self-isolate. This amendment to the ESA appears to recognize that in times of dangerous pandemics, any exposure to the public in or en route to the workplace may constitute a danger to the employee’s (and to the public’s) health and safety.

Employees are also now entitled to an unpaid leave to care for a sick relative. A broad list of enumerated relatives is found under s. 50.1(8). Further, employees are also entitled to an unpaid leave where school and/or daycare closures have imposed additional childcare obligations on them. With schools in Ontario now closed indefinitely, most parents will be dealing with additional childcare obligations.

Employers are entitled to ask employees to provide reasonable evidence under the circumstances that the employee is entitled to the leave. However, in the case of infectious diseases the employer cannot ask the employee to produce a doctor’s note (see s. 50.1(4.1)). This provision again protects the health and safety of workers who may risk exposure by attending at hospitals to obtain sick notes, and it protects scarce health resources when they are sorely needed.

While these leaves are unpaid, employees are entitled to continued benefits, health plans, pension contributions etc provided by the employer. An employer is not allowed to reprise against any employee taking an Emergency Leave or infectious disease leave.

It is important to note that the protections to take Emergency Leaves provided under ESA s. 50.1 only apply for the duration of a declared state of emergency. Emergency Leaves generally end when the declared state of emergency is lifted. However, leaves under the new amendments for infectious diseases last for as long as COVID-19 continues to be designated as an infectious disease. There is no stated maximum duration while the designation remains in place.

Outside of a government-ordered closure of non-essential business, and subject to leaves under ESA s. 50.1, generally employers are still able to lawfully require otherwise healthy workers to report to work. There may be an exception to this is you are immunocompromised or medically vulnerable, or if you are responsible as a caregiver for someone who is. There may also be an exception based on your family status if you have childcare or other family care obligations.

Human Rights Protections for Immunocompromised and Medically Vulnerable Workers

If you are immunocompromised or otherwise medically vulnerable, under the Human Rights Code your employer may have a duty to accommodate you up to the point of undue hardship. This may mean providing you with modified duties that minimize your risk of exposure, including by allowing you to work remotely or work from home. If this is not possible, your employer may have to accommodate you by allowing you to take a job-protected leave from work.

Medical vulnerability also extends beyond physical illnesses. Some mental health or psychological disorders may also mean that your employer has a duty to accommodate you. For instance if you live with a diagnosed anxiety or obsessive-compulsive disorder that would make it highly distressing to attend work at this time, your employer may again have a duty to accommodate you to the point of undue hardship by providing modified duties or a job-protected leave.

If an immunocompromised or medically vulnerable worker contracts COVID-19, given their susceptibility to serious consequences, their employer may have a duty to accommodate a worker through the recovery period.

What happens if an otherwise healthy worker contracts COVID-19?

First and foremost, you will need to time to self-isolate, recover and get healthy again. For as long as COVID-19 is designated an infectious disease, workers are entitled to a job-protected leave under the amendments to ESA s. 50.1.

With respect to human rights protections for a job-protected leave, traditionally the Human Rights Tribunal of Ontario has not recognized short-term or transitory illnesses (like a cold or flu) as a “disability” under the Code. This leaves workers vulnerable to a finding that contracting COVID-19 might not trigger an employer’s duty to accommodate.

However, on March 13, 2020, the Ontario Human Rights Commission adopted a significant policy position that “negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.” While these policy positions are not binding on the HRTO, they have great persuasive value. It may be possible to argue that, given the deep public health, social and economic impact of COVID-19, those who contract the illness should be afforded protection akin to workers living with a disability. This would mean that employees should not be sanctioned for absenteeism if health officials have quarantined them or advised them to self-isolate.

In this light, workers who contract COVID-19 may take job-protected leaves under both the ESA and the Code.    

Caregiving and Family Status Protections

Many workers also have care-giving responsibilities for family members. They might already be caring for immunocompromised, medically vulnerable or elderly family members, or they may have to stay home to care for someone with COVID-19. These responsibilities are likely protected under family status grounds under the Code.

Moreover, schools and daycares across Ontario have shut as of March 16, 2020, with the closures to likely continue indefinitely. This will undoubtedly impose additional childcare obligations on many workers. Due to the public health emergency and attendant social-distancing and self-isolation, during this time workers may be unable to “self accommodate” by turning to others they have typically relied upon to share childcare responsibilities, such as family members, neighbors and babysitters.

Employers have a duty to accommodate an employee’s family status, including childcare obligations, to the point of undue hardship. Depending on the specific work situation, this may include modified duties, modified hours of work, absences from work, and leaves from work.

As noted above, leaves from work to provide childcare are also now protected under the amended ESA s. 50.1 for as long as COVID-19 remains a designated infections disease.

Getting Paid While on Leave

Whether you are paid for voluntary or forced leaves from work depends on individual employment contracts and employer policies. If paid sick leaves are provided for by your employer, you should remain entitled to them.

The ESA itself no longer requires employers to provide any paid sick days. However, you may be eligible for Employment Insurance Sickness Benefits. As of April, 2020, workers not eligible for EI benefits will have access to Emergency Support and Emergency Care Benefits through the Canada Revenue Agency. 

Finally, if you contract COVID-19 at the workplace, it may be possible for you to claim compensation through the Workplace Safety and Insurance Board (WSIB). While it is difficult to predict how receptive the WSIB will be to such claims, it is generally advisable to apply for WSIB benefits as soon as possible upon becoming ill in the workplace.  

Your responsibilities

Workers have both rights and responsibilities under the Occupational Health and Safety Act. Included among the latter is the responsibility to report any known health or safety hazards to your employer. In the current circumstances, this likely includes a duty to inform your employer if you have recently travelled outside of the country and/or if you believe you may have been exposed to the virus. You should do so by calling, texting or emailing your manager and seeking their direction; do not attend at your workplace, even if you have a scheduled shift.

If you work with higher risk populations (for example, seniors in care homes), your employer may require you to wear a face mask, gloves, or other personal protective equipment (PPE). It is your employer’s responsibility to ensure you know how to properly use (and dispose of) any PPE, but you have a duty to make use of the equipment that is provided.    

Conclusion

The COVID-19 pandemic will be hugely disruptive for employers and employees alike, not just in Canada but across the world. For many it represents a serious threat to their livelihoods. Marginalized workers, such as minimum wage workers, part-time workers, gig economy workers, non-unionized employees and those working for hourly wages with few if any benefits, are most likely to have their income further squeezed at this time.

While job-protected leaves have become a public health necessity, the fact that these leaves are unpaid is not sustainable. Time will tell whether a government bailout package, including the Emergency Support and Emergency Care Benefits the Federal Government will announce in April, are sufficient to address the income needs of workers for the course of the COVID-19 pandemic.

COVID-19 is not only a national but a global public health emergency. Its cost should not be disproportionately borne by marginalized workers. After all, even as we practice social-distancing and self-isolation, the immutable fact is that we’re all in this together.

The above blog post provides general information only and should not be relied upon as legal or other professional advice. For advice about your specific circumstances, contact us to schedule a consultation.