In this blog post, we provide answers to the following four questions posed by Ontario employers:
- Can my employees walk off the job for fear of contracting COVID-19?
- Do I still need to meet my filing deadlines?
- One of my employees reported having COVID-19 after reporting to work for several days—what do I do?
- Is a COVID-19 infection a disability?
Q1: Can my employees walk off the job for fear of contracting COVID-19?
Short answer: No.
In press conferences last week, Premier Doug Ford stated:
We passed legislation. Not just construction workers—any worker in Ontario—if you don’t feel safe in your workplace, your job will be protected […]. You can leave the job site.
If the workplace, the construction site, is not safe, you can walk off the job.
The legislation referenced by the Premier does not permit employees to “walk off the job”. Employees at non-essential businesses should not be reporting to the physical workplace except under limited prescribed circumstances, such as to deal with critical matters relating to the closure of the business. Any such employees and employees continuing to work at essential workplaces must follow the statutory procedure for work refusals under the Occupational Health and Safety Act, RSO 1990, c O1.
That procedure applies only if an employee has reason to believe that potential exposure to COVID-19 at work is likely to endanger him/herself. The employee must remain present during the initial investigation and accept any reasonable alternative work that may subsequently be assigned pending further investigation. Additional information regarding work refusals can be found here.
Q2: Do I still need to meet my filing deadlines?
Short answer: No, subject to discretion.
OReg 73/20 under the Emergency Management and Civil Protection Act (the “Act”) has suspended all limitation periods for the duration of the state of emergency, retroactive to March 16, 2020. Procedural deadlines are also suspended for this period, subject to the discretion of the applicable court, tribunal, or other decision-maker. Employers should verify whether procedural suspensions apply in their case.
Q3: One of my employees reported having COVID-19 after reporting to work for several days—what do I do?
Short answer: Direct that employee and any employees who might have come in contact with him/her to self-isolate for 14 days, unless you provide an essential service.
The Ontario Ministry of Health directs all persons who might have been exposed to COVID-19 at work to self-isolate for the 14-day incubation period. Exceptions apply to employees in essential services; they may continue to work provided they do not exhibit any symptoms, continue stringent self-monitoring, and wear adequate personal protective equipment. Essential service employers should further ensure that their other employees are protected from exposure.
All non-essential workplaces are currently closed pursuant to under OReg 106/20 the Act until April 13, 2020, unless extended. Employees at these workplaces should already be working from home, on leave, on vacation, or on layoff. Employers should direct any employees who might have come in contact with COVID-19 prior to the closure (or while attending at the business during the closure under the limited prescribed circumstances) to self-isolate at home for a 14-day period regardless of whether OReg 82/20 is revoked.
Your local public health authority may impose additional measures in response to a positive COVID-19 test on a case-by-case basis.
Any employees who contract COVID-19 at work may be entitled to WSIB benefits. Employers should follow the usual procedure for filing reports of workplace accidents with the WSIB.
Q4: Is a COVID-19 infection a disability?
Short answer: Yes.
The Ontario Human Rights Commission has taken the position that a COVID-19 infection constitutes a disability within the meaning of the Human Rights Code, RSO 1990 c H19. This means employers cannot discriminate against employees for having a COVID-19 infection, and they will be required to accommodate such infections to the point of undue hardship. The usual analysis applicable to disability discrimination and accommodation applies. For example, employers cannot discipline or terminate employees because of a COVID-19 infection. Employers must also be sensitive to an employee’s caregiving responsibilities at home and assertions of a compromised immune system.
Knowledge and current awareness are the best defense in these challenging times. We recognize that staying on top of new developments can be a daunting exercise as new information is continuously released across the country. We are here to support employers by sharing highlights of COVID-19-related developments on our blog, available in English and in French. Please check in regularly for updates.
The authors would like to thank Shirley Wong for her contribution to this piece.