FAQs

Q: Is there a request from the Government (or any other organization) for foreign visitors to return to their home country?

A: Yes. The Federal Government is banning International Travel and non-residents have been encouraged to return to their home Country (see link). International Students attending our post-secondary institutions have also been told to leave the Country.

Source: Ius Laboris Canada Matthew Dinsdale & Clark LLP| Global HR Lawyers

Q: I have calls from international travellers requesting accommodation for a couple of days. I’m very uncomfortable saying no to them. Is there any direction on how to handle such contacts?

A: The 14-day self-isolation requirement for anyone outside the Country applies and you are within your rights. While difficult, the tourism industry must follow the protocols to stay safe. 

Q: An employee has tested positive for COVID-19 – what does the employer do?

A: The employee should not be permitted to return to the workplace until they are free of the COVID-19 virus. The current advice from health authorities is that all employees who worked closely with the infected employee should also be removed from the workplace for at least a 14-day period to ensure the infection does not spread in the workplace. What constitutes “closely” will depend on the workplace and the nature of interactions between employees. Employers should err on the side of caution. Employers should also take reasonable measures to protect the confidentiality, to the extent possible, to protect the identity of any employee who contracts COVID-19.

Q: Can an employer temporarily lay off employees?

A: Yes, but there is a real risk that any unilateral lay off of employees may be treated as a termination of employment under employment standards legislation or the common law. There are also statutory exemptions in many jurisdictions for unforeseeable circumstances, which may include a pandemic or government-ordered closure of a business. A number of provincial governments are proposing amendments to statutory leave guarantees to address the impact of COVID-19. 

Read MacLean's Canada Layoff Tracker.

Q: What happens to our employees if we are ordered to close our business by the government?

A: If the employer is ordered to close by health or other authorities, employers may be able lay off employees without liability under provincial employment standards legislation or the common law. Each case will be dependent on its own facts.

Q: If we layoff our employees, are they still covered under our benefit plans?

A: This will depend on the language of the benefit plan document. Employers must review their policies with their benefit plan provider and advice employees of any limitations or restrictions in coverage.

Q: Can an employer close its business for safety reasons due to the COVID-19 outbreak?

A: An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location for occupational health and safety

reasons. An employer’s obligation for providing notice or pay in lieu of notice to employees in the event of a workplace closure will be governed by the specific facts of each case.

Q: If an employer keeps an employee without COVID-19 symptoms out of work, is there a requirement to compensate the employee?

A: This will depend on the circumstances, including if the employee has travelled, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential contract or collective agreement requirements. While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable. There is also the potential for reputational damage should it become publicized that employers are forcing employees to remain away from the workplace without pay. Employers may also wish to consider whether the absence of compensation will reduce the efficacy of preventative measures in the workplace. If they will not be compensated, employees may not self-assess as critically as required or may not report issues or concerns.

Q What if an employee has COVID-19 and cannot work?

A: Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.

If the employee contracted COVID-19 in the workplace, there may be additional reporting obligations under workers’ compensation and occupational health and safety legislation.

Q: Can an employer fire an employee if they contract COVID-19?

A: No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.

Q: What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?

A: Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has reason to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety (which is not an inherent or normal condition of their work), the employee may be able to refuse to attend work or perform certain duties. In the context of the COVID-19 pandemic, employers can expect to see work refusals from employees based on:

• a confirmed or presumptive case of COVID-19 in the workplace;
• a confirmed case of COVID-19 in an employee’s immediate family or other close contact;
• the risk of potential exposure to COVID-19 from contractors, customers or clients depending on the nature of the workplace or the people it serves;
• concerns from employees who are particularly vulnerable (over age 65, compromised immune system, underlying medical condition) not wishing to report to work; or
• employees with a generalized fear of contracting COVID-19 by travelling to or attending work.

Whether or not a wok refusal based on the above or other grounds is reasonable will depend on individual circumstances. In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.

Employers should also understand that, where the regulator is required to resolve the work refusal, the way the regulator does so could be different than might ordinarily occur. The determination of the regulator might be made without meeting with the workplace parties in person or there may be other steps or measures implemented by the regulator, for the protection of its staff, that are unusual.

Q: Can employees be disciplined for a work refusal?

A: Provincial occupational health and safety legislation generally provides that employers cannot dismiss, discipline, or intimidate employees for properly exercising a health and safety right. An employer may be justified in imposing discipline if the work refusal has been exercised in bad faith. However, the ability to discipline will depend on the circumstances of the work refusal and the language in the applicable work refusal right. An employer considering discipline for a refusing worker should do so after consultation with counsel in all but the clearest of cases.

Q: Can employees refuse travel as part of their job duties?

A: That will depend on the nature of the employee, the specific job and the travel destination. For example, employees over the age of 65 may not wish to travel at all. If there is a legitimate work refusal for safety reasons, occupational health and safety legislation will govern the resolution of any work refusal.

Q: Can an employer require an employee to work remotely?

A: In the current climate, a request that employees work remotely will likely be seen as a reasonable measure to encourage social distancing, given the advice of federal and provincial government authorities.

Q: How do we monitor employees working remotely?

A: Employers should have a written policy which governs employees who are required to work remotely and addresses such things as working hours, productivity, remote meeting protocols, BYOD issues, etc.

Q: What if an employer needs to replace sick employees on a temporary basis to operate?

A: An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work. Employers in unionized workplaces should be cognizant of collective agreement and provincial labour laws applying to unionized workplaces. Employers should have already assessed how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work. If you have not done so already, do so now.

Q: Do employers have to buy personal protective equipment for employees?

A: Employers have a duty to provide a safe working environment relative to the expected duties of the employee and the risks in the workplace. If employees run the risk of becoming infected at work because of the work they perform, the employer must provide personal protective equipment. As of March 12, 2020, public health authorities are not generally recommending personal protective equipment (e.g. masks, gloves) or any other physical protective devices. The preventative measures being advised are hand, respiratory, and environmental hygiene and social distancing. These recommendations suggest that these measures are generally reasonable for most workplaces. However, if you have an employee who is vulnerable (over age 65, compromised immune system, or underlying medical condition) the obligations to this employee could be different. Precisely what steps may be reasonable to protect the vulnerable worker are likely to be determined on a case-by-case basis and involve advice from public health and/or medical officials. Employers may not know if a vulnerable employee is in the workplace. As part of workplace communications about COVID-19, employers should prompt workers with individual risk concerns to raise them with the employer.

Q: Can we prevent an employee from wearing masks at work?

A: Yes, unless the use of personal protective equipment, such as masks, is a condition of employment or otherwise required for the employee to safely perform their duties.

Q: If an employee contracts COVID-19 at work – are they covered by workers’ compensation?

A: Possibly, but the assessment of whether the employee is entitled to compensation would be assessed on a case-by-case basis. Workers compensation boards will have to assess whether COVID-19 is an occupational disease: e.g. it was caused by and arose out and in the course of employment.

A: Will EI offer sickness benefits to Canadians?

Q: Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or quarantine, to allow them time to restore their health and return to work. Canadians quarantined can apply for EI sickness benefits. Presently, the one-week waiting period for EI sickness benefits has been waived for claimants who have been quarantined, as has the requirement for a medical certificate.

Q: What does income support look like for workers who do not qualify for EI sickness benefits?

A: The measures include an Emergency Care Benefit, which will provide up to $900 bi-weekly for up to 15 weeks to provide income support to workers who do not qualify for EI sickness benefits, workers caring for a family member with COVID-19 and parents who are unable to work due to childcare obligations. Applicants will be required to attest that they meet the eligibility requirements and to re-confirm eligibility every two weeks. It is anticipated that this Benefit will commence in April 2020.

Q: What if my workers aren’t eligible for EI?

A: The Emergency Support Benefit will provide payments to workers who are unemployed and are not eligible for EI. At this time, the details of the amount payable to workers have not been released. It is anticipated that this Benefit will commence in April 2020.