While the risk of contracting COVID-19 in Alberta and the Northwest Territories remains low, the situation is fluid and changing quickly. As a result, employers worldwide are balancing the steps necessary to lessen the effects of COVID-19 with continuity of operations. To this end, the Alberta government has just announced changes to the Employment Standards Code (ESC) that allow employees who are required to self-isolate or care for a family member with COVID-19 to take 14 days of paid leave to cover the recommended self-isolation period. Employees will not need doctors’ notes nor will they have had to work for the previous 90 days to qualify. The particulars of such a leave have not been announced. These changes to the ESC have become particularly relevant to employers in light of the closure of schools and daycares announced March 15 and the states of emergency recently declared in some Alberta cities which include the closure or limited capacity of other facilities/buildings.
We have prepared the following list of frequently asked questions to assist employers in managing COVID-19 in the workplace. Should you have any further questions or wish to discuss how the pandemic might affect your workplace, we are happy to discuss by phone, email or by video conference.
What can employers do to prevent the spread of COVID-19 in their workplace?
If employees are able to work from home, some employers are encouraging social distancing and requesting employees to work remotely. Written policies regarding remote working protocols can assist employers with the management of operations, scheduling and tracking hours, maintaining productivity, monitoring and servicing electronic devices, and other key business continuity functions.
If employees are unable to work from home owing to the nature of their services or the employer’s business, employers should ensure all employees are aware of relevant information from health authorities such as symptoms of COVID-19, self-assessment tools, and preventative practices. Employers should also alert employees to applicable company policies such as sick days, “stay away if sick” policies, and pandemic policies.
The latest public restrictions recommend cancellation of events with more than 250 attendees and events with more than 50 attendees that have international participants, critical infrastructure staff or high-risk populations. Additionally, capacity restrictions and facility closures in some municipalities will limit events and gatherings to a maximum of 250 people, and in some cases much less.
Personal Protective Equipment
Public health authorities are not recommending personal protective equipment (such as masks) to prevent contracting COVID-19. If, however, employees have additional risk of infection at work because of the type of services they provide, employers should provide necessary personal protective equipment to provide a safe working environment.
Employers can continue to promote preventative practices like the following:
- Use good hygiene practices, such as frequent handwashing (and the placing of posters reminding people of doing so around the workplace)
- Use alcohol-based hand sanitizer only if soap and water are not available
- Stay at home and away from others if you are feeling ill
- Practice proper cough and sneeze etiquette and then wash your hands
- Practice social distancing
- Monitor your health, and
- Take the Alberta Health Services’ COVID-19 Self-Assessment or contact Health Link 811 if you have questions or concerns about your health.
Can an employer restrict employees from returning to the workplace after travel?
Employers should enforce the recommendations of local health authorities through the use of statutory leaves, sick days, “stay away if sick” policies, work from home policies, and pandemic policies. Health authorities recommend that travellers returning from outside Canada after March 12, 2020 should self-isolate for 14 days and monitor for symptoms. Health authorities also recommend a similar period of self-isolation for travellers returning before March 12, 2020 from Italy, Iran, China’s Hubei province or the Grand Princess cruise ship. Travellers returning from other countries before March 12, 2020 should monitor for symptoms for 14 days. As stated above, Alberta’s ESC is in the process of being amended to provide employees with 14 days of paid job-protected leave for self-isolation for COVID-19.
Can an employer restrict future travel of its employees?
An employer’s ability to prohibit an employee from returning to work will depend on the circumstances, including the nature of the employer’s business and the employee’s travel locations. Health authorities are not recommending travel outside of Canada. Accordingly, employers should advise employees that should they choose to travel outside of Canada they will be required to self-isolate for 14 days following the date they return to Canada. Employees should also be made aware of the upcoming changes to Alberta’s ESC to accommodate self-isolation for COVID-19.
What does an employer do if an employee tests positive for COVID-19?
In cases of confirmed COVID-19, the infected employee must not return to the workplace until they no longer have COVID-19. Issues concerning compensation for such employees are addressed below.
With respect to the remainder of the workplace, health authorities recommend that all employees who may have had “close contact” with the infected employee should be removed from the workplace and encouraged to self-isolate and limit contact with others for at least a 14-day period to ensure the infection does not spread. Employers should consider upcoming changes to Alberta’s ESC in addition to the recommendations outlined below to manage and encourage such self-isolation.
“Close contact” is defined as a person who provided care for the individual, including healthcare workers, family members or other caregivers, or who had other similar close physical contact with the person without consistent and appropriate use of personal protective equipment OR who lived with or otherwise had close prolonged contact (within 2 metres) with the person while they were infectious OR had direct contact with infectious bodily fluids of the person (e.g. was coughed or sneezed upon) while not wearing recommended personal protective equipment.
What does an employer do if an employee suspects they have been in contact with COVID-19 but has not been tested yet?
Much like the above, any employees who suspect they have been exposed to COVID-19 should be removed from the workplace and encouraged to self-isolate and limit contact with others for at least a 14-day period or until COVID-19 can be ruled out by health officials. Out of an abundance of caution, employers should also remove other employees from the workplace who may have had close contact with the employee suspected of COVID-19 exposure. Health authorities recommend that anyone experiencing mild symptoms (such as fever, cough or difficulty breathing) should self-isolate and call local health authorities for advice.
Do employers have an obligation to advise their employees if someone in the workplace tests positive for COVID-19?
Privacy legislation prohibits employers in both the private and public sectors from disclosing the personal information of employees without their consent, except in limited circumstances. As a general rule, employers may not announce that a specific employee has contracted the virus, nor is it recommended that employers announce that an anonymous employee has been infected (since the announcement, coupled with the employee’s absence from the workplace, can have the same practical effect as a specific announcement).
Importantly, however, employers do have an obligation – as noted above – to remove from the workplace other employees who may have had “close contact” with the infected employee and encourage them to self-isolate for a period of 14 days. They should attempt to do so in a manner that respects the privacy of every employee involved to the extent possible in the circumstances.
Do employers have an obligation to report employees testing positive for COVID-19 to local health authorities?
No, there is no obligation for employers to report confirmed cases to local health authorities. Employers may, however, elect to advise local health authorities to assist in identifying the potential scope of exposure occasioned by the infected employee.
Employers may have an obligation to report an employee’s illness or death due to COVID-19 to Alberta Occupational Health and Safety and/or Workers’ Compensation Board if it is determined that COVID-19 was contracted in the course of employment. Any such obligation would depend on the particular circumstances of the case.
What if employees refuse to work because of fear of contracting COVID-19?
Employees can refuse work if they believe on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to their health and safety. Indeed, both employers and workers must take reasonable care to protect the health and safety of the worker and other workers under the Occupational Health and Safety Act (OHSA). If an employee refuses to come to work due to fear of contracting COVID-19, employers must respond by carrying out an investigation and, if applicable, take action to eliminate the danger in accordance with OHSA. In order to determine if the refusal is reasonable, employers can rely on the scientific information available on COVID-19 from health authorities and should work with their health and safety representative or committee. While investigating the refusal, employers should remember that the worker is entitled to the same wages and benefits that they would have received if they had continued to work. Reprisal against employees exercising a work refusal, such as termination, is prohibited under the OHSA.
Can an employer terminate an employee due to illness from COVID-19?
No, employers may not terminate or otherwise discriminate against an employee due to physical disability (including illness) under human rights legislation. Employers are obligated to accommodate the employee to the point of ‘undue hardship.’
If an employee is unable to work due to COVID-19 (illness, self-isolation, etc.), does the employer have to compensate the employee?
Compensation of employees depends on the particular circumstances. Employment agreements, collective agreements, or policies may provide an employee with a contractual entitlement to sick days, which they can exercise if they develop symptoms associated with COVID-19 and are unable to attend the workplace and provide services.
Employers should continue to monitor changes to Alberta’s ESC regarding employees’ entitlement to 14 days of paid job-protected leave to cover self-isolation. Additionally, the ESC also provides employees with up to 5 days of unpaid personal and family responsibility leave in each calendar year for the health benefit of themselves or a family member. As a result, employees experiencing flu-like symptoms may use these sick days to seek medical attention, convalesce, or provide care for an affected family member. If an employee is actually ill or quarantined, the ESC also provides 16 weeks of unpaid, job protected long term illness leave. Under the recent announcement from the Alberta Government, a medical note will not be required for this or any other ESC leave.
Can an employer temporarily lay off employees?
It depends. If the employer’s business has been negatively impacted, a temporary lay-off under the ESC can be an option. There is a risk that, unless the employment contract provides the employer a right to layoff, an employee could treat the lay-off as a constructive dismissal. The lay-off letter must follow the requirements set out in the ESC.
The Federal Work-Sharing Program may be an alternative for employers that are experiencing a downturn in business due to COVID-19 and who qualify. This program provides income support to employees eligible for EI benefits who work a temporarily reduced workweek while their employer recovers from a temporary reduction in the normal level of business activity that is beyond the control fo the employer. More information can be found at the Government of Canada website. The Federal Government announced on March 11 that it was extending the period during which the program could be used from 38 to 76 weeks.
The announced proposed changes to the ESC, when passed, will eliminate the ability for an employer to lay-off an employee for the duration of the 14 day quarantine period.
Are employees entitled to workers’ compensation benefits if they contract COVID-19 at work?
Perhaps, Workers’ compensation boards will assess whether COVID-19 is an occupational disease and whether the employee is entitled to compensation on a case-by-case basis.
Are employees entitled to Employment Insurance (EI) benefits if they contract COVID-19?
Eligible workers with limited benefits through their employers can apply for up to 15 weeks of EI if they cannot work for medical reasons. The Canadian government has amended the EI program to allow employees quarantined due to COVID-19 to receive EI benefits for the entire 14-day period. These amendments have eliminated the one-week waiting period before payments start and waived the requirement for a medical certificate.
WHAT’S NEXT: HOW DO EMPLOYERS STAY UP TO DATE ON COVID-19?
Alberta Health Services (AHS) is updating their website frequently with relevant information on COVID-19.
If you have any questions about managing COVID-19 or other potential pandemics in your workplace, the lawyers in Field Law’s Labour and Employment Group are available to answer your questions and advise you and/or your organization.