By Shane Todd and Justin P’ng
The COVID-19 pandemic continues to proliferate in Canada and around the world since its initial outbreak in late 2019. Its impact on economies and societies has been tremendous and unprecedented. While employers face serious legal challenges in managing their workforces during these disruptive times, such challenges are not necessarily insurmountable. With careful planning and execution, employers can navigate the legal risks posed by the pandemic and maintain a stable workforce to ensure the continuity of their business operations.
These legal risks arise as a result of both the pandemic and the government response. Statistics Canada has calculated that the Canadian economy shrank by 9% and shed over one million jobs in March 2020. The Government of Canada has responded with billions of dollars in significant new financial relief programs to keep employers and employees afloat. Provincial governments have introduced their own financial relief measures and implemented new statutory leaves of absence and other legislative reforms to address new challenges in workforce planning.
Public health measures have been similarly stark. Many provincial governments have ordered vast swathes of their economies to shutter physical workplaces and are actively enforcing social distancing requirements. The Government of Canada has enacted strict border controls and continues to impose quarantine measures on returning travellers. The world’s longest undefended border is now closed for all non-essential travel as Canada and the U.S. batten the hatches.
This article outlines the legal issues that Canadian employers should generally be prepared to deal with as part of their response plan. Employers with unionized workforces will also need to be mindful of specific obligations in their collective agreements, including any obligation to consult with union representatives. Statutory obligations to work with health and safety committees on certain health and safety initiatives may also apply.
The Risk to Canadian Workplaces
As with many common illnesses, the workplace is susceptible to the spread of COVID-19 because of the proximity between workers, and the frequency of contact with shared surfaces and objects. According to the Public Health Agency of Canada (PHAC), COVID-19 spreads through infected respiratory droplets being deposited on surfaces and objects, which another person may touch and then touch their mouth, eyes or nose before washing their hands. Someone can also catch the virus by being in close, prolonged personal contact with an infected person.[1]
Employers should keep themselves informed by monitoring the daily situation reports from the World Health Organization and relying on the PHAC and their local or provincial public health agency for workplace health and safety guidance, the latest travel advisories, and current assessments on the public health risk for Canadians.
Establishing a Communicable Illness Policy
Employers should develop a written policy setting out clear guidelines on how the employer handles communicable illnesses like COVID-19. A written policy that is communicated to the workforce and uniformly enforced will provide legitimacy to employer actions, guidance to employees and managers, and ensure consistency. This can help mitigate legal risks and assist in the defence of legal challenges to employer decisions.
A communicable illness policy may include some of the following elements:
· A requirement that employees who have or suspect that they have a communicable illness will seek appropriate medical treatment and follow the recommendations of their treating healthcare professional and any public health official;
· A requirement that employees remain out of the workplace for the period of time recommended by healthcare or public health professionals, and a related right of the employer to enforce that requirement for ill employees and those who have been exposed to a communicable illness where such restriction is necessary to protect other employees;
· An overview of the paid and unpaid leave entitlement available to employees affected by a communicable illness;
· A confirmation that the employer may restrict business travel to areas subject to a Government of Canada Level 3 or 4 travel health notice (Level 3 warns Canadians to avoid non-essential travel, and Level 4 warns Canadians to avoid all travel), and a requirement for employees to notify their manager if they or someone with whom they reside plans to or has recently travelled to/from an area subject to such a notice;
· A confirmation of the employer's commitment to take reasonable precautions and other specifically prescribed steps required by health and safety or other legislation to protect employees; and
· A confirmation that the employer's decision about employees affected by a communicable illness will be based on the most current available medical or public health information, including information about transmission risk, and prognosis for recovery, among other things.
Some specific issues covered in a communicable illness policy are discussed in more detail below.
Employee Leave of Absence
Employers should reserve the right to restrict employees from attending work to prevent the spread of communicable illnesses. This may include requiring ill employees, or employees who have been exposed to certain communicable illnesses, to remain at home. These decisions should be made based on the most current available public health and medical information.
Employees who are ill with a communicable illness and unable to work should have access to paid sick leave benefits generally available to other employees. In many provinces, they now have access to unpaid, job protected leaves under employment standards legislation. If no paid sick leave entitlements are provided by the employer, sick time may be unpaid by the employer. Employees should be reminded of the possible availability of Employment Insurance sickness benefits or other government benefits -- including the new Canada Emergency Response Benefit.
Employees who have been exposed, but who are not ill, should be allowed to work remotely where possible. Where remote work is not possible, employers should obtain specific advice about whether leaves should be paid or unpaid to mitigate possible liability.
Employers should be mindful of employee privacy issues when communicating leave of absence decisions to other employees in the workplace. Information should be limited to confirming that an employee is out of the workplace and their expected return to work date, unless the employee expressly consents to sharing additional information. It may be appropriate in some cases to seek that consent and develop a message that the employee is comfortable sharing with coworkers and that is carefully vetted by the employer to ensure compliance with their legal obligations.
Medical Clearance
It is not likely reasonable to require confirmation that an employee tested negative for COVID-19 before returning them to the workplace whether from illness, leave or travel. The availability of testing through public health authorities for COVID-19 is generally limited, varies between provinces, and is currently restricted to cases meeting certain criteria.
It is generally advisable that individuals with suspected or confirmed exposure to COVID-19, or who is otherwise experiencing symptoms, self-isolate for the 14-day incubation period as recognized by PHAC,[2], or longer as directed by a healthcare professional or public health official. Depending on the circumstances, and subject to healthcare or public health directions, if an employee is not experiencing symptoms after 14 days of self-isolation, it may be reasonable to return the employee to the workplace without a medical certificate.
Business Continuity
In addition to a communicable illness policy, employers should develop a plan and procedures in case their community becomes seriously affected by COVID-19. The plan should include measures to keep the business running even if employees cannot come into the workplace. Indeed, many provinces have already ordered closures of non-essential businesses.
Businesses should ensure that information technology systems are functioning to enable seamless working from home. This may require arranging for additional IT support staff to assist with employees experiencing any difficulty with remote access systems. A business continuity plan should also identify key employee groups and individuals that are necessary to keep the day-to-day business operating. Employers can then consider whether some of these key functions can be done by employees remotely and make arrangements accordingly.
Businesses should also take advantage of new government programs to stabilize their financial situation and to assist employee who are not working. The Government of Canada has established the temporary Canada Emergency Wage Subsidy to help employers keep employees on payroll by covering 75% of their eligible remuneration paid up to $847 for up to 12 weeks retroactive to March 15, 2020. Workers who ceased working or are working reduced hours due to COVID-19 may be eligible to receive the Canada Emergency Response Benefit, a $2,000 monthly payment. Businesses can also shore up their finances with new loan and credit options under the Business Credit Availability Program, a $65-billion initiative that provides financial support options on generous terms to eligible enterprises.
In summary
Fasken continues to monitor the pandemic and will provide timely updates at our COVID-19 Knowledge Centre.
The assistance of Jessica Nolan in preparing this article is gratefully acknowledged.
Shane Todd is a partner with the Fasken Toronto office who advises employers on workplace issues and represents them in legal proceedings. He has won cases at trial and on motions, negotiated and enforced agreements and achieved great settlements for clients. Frequently retained in high-stakes litigation, Shane was recognized as a “Rising Star: Leading Lawyer under 40” by Lexpert in 2019.
Justin P’ng is an associate with the Fasken Toronto office who practices in the areas of labour, employment, and human rights law. He advises and represents unionized and non-unionized employers in the provincial and federal sector on matters related to employment standards and related litigation, grievance arbitration, labour relations and human rights.
[1] Public Health Agency of Canada. “Coronavirus disease (COVID-19): Prevention and risks” (9 April 2020), online.
[2] Public Health Agency of Canada. " Coronavirus disease (COVID-19): Symptoms and treatment” (7 April 2020), online