It is hard to believe that the SARS epidemic, which until recently felt like a distant memory, occurred a mere 17 years ago. Unfortunately, it is with the recent outbreak of the novel coronavirus, COVID-19/COVID-19 that we are reminded of the speed and severity with which these  viral outbreaks can arise, take hold, and severely impact lives, livelihoods, business, commerce, and global markets.

While the statistics for rates of infection are rising at an alarming, headline grabbing rate, it is crucial that employers are prepared to address the impact of COVID-19, and any new epidemic. Employers have legislative obligations requiring them to ensure that the workplace is safe. Failure to comply with this obligation may result in severe consequences including reputational damage and financial consequences including loss of human capital and fines.

An employer’s obligation to protect the health and safety of “workers” in the employer’s workplace is set out in the Workers Compensation Act (the “Act“) and the Act’s Occupational Health and Safety Regulation (the “Regulation”). It is likely that inadequate measures to prevent the spread of a deadly virus will constitute a danger to the health and safety of workers. In the face of an employer’s failure to meet its legislated responsibilities, employees have the right to refuse to work and cannot be disciplined for so doing.

Employers are further obliged under Human Rights legislation to provide a workplace that is free from discrimination and harassment. Discrimination in employment on the basis of certain protected grounds including, but not limited to, race, ancestry, place of origin, physical or mental disability is prohibited. When SARS was at its peak in 2003, the Ontario Human Rights  Commission confirmed that SARS was included within the definition of ‘disability’ under the Ontario Human Rights Code.[1] Given that COVID-19 is in its early stages we have yet to see any similar statements issued however, we anticipate that the treatment COVID-19 will be similar to the treatment of SARS vis-à-vis any discriminatory conduct. Accordingly, employers must be mindful of differential treatment of employees with, or who are perceived to have, COVID-19, other than for the health and safety of the workplace.

A general best practice is to discourage employees from attending at the workplace if they are symptomatic of any contagious illness (flu, cold and COVID-19 included) given the risk they may pose to the health and safety of the workplace. To that end, employers ought to remind employees that they will not be penalized if they are ill and do not attend work. Accommodating sick or at risk employees through alternative work arrangements such as working remotely is encouraged. Employers should work with employees to facilitate any claims for sick leave (or short term disability if available). In the alternative, employers should allow employees to use vacation time or days in lieu.

Unpaid leave is ill-advised and should be the solution of last resort given the risk employees will attend work while ill to avoid financial hardships.  Under the Employment Standards Act employees are entitled to up to 5 days unpaid leave to care for an ill family member. In Ontario, during the SARS epidemic, the SARS Assistance and Recovery Strategy Act was passed which allowed for addition leave to an employees. Again, we have not yet seen similar legislation in Ontario or any other provide but employers should be mindful of any legislative amendments and entitlements and encourage employees to utilize their paid or unpaid leaves where appropriate.

Finally, employers must balance these obligations with the employee’s right to protection of personal information including health status. Whether to breach confidentiality of employees who are diagnosed or symptomatic and possibly under quarantine for the safety of the workplace should be assessed on a case by case basis.

These epidemics are not infrequent; in the last 17 years we have experienced SARS, H5N1, Swine Flu, MERS, Ebola and Zika. Being prepared to address global health crises will significantly reduce the risk to employers and employees alike.