The Novel Coronavirus virus involves a respiratory infection closely related to SARS and MERS and has been declared a global health emergency by WHO. Researchers are trying to work out the ways that it is transmitted and employers are wondering how the virus may affect their workplaces. This article provides some general information and reminds employers to educate their employees and keep up to date on the latest developments surrounding this virus.
Prevention – Transmission:
Employers under the Occupational Health and Safety Act (OHSA ) must “take every precaution reasonable in the circumstances” for the protection of a worker. The WHO recommendations for the general public, which includes employers outside the health care and emergency services industries, do not require any specialized protective equipment at this time. As such, the best practice based on CDC recommendations, is to remind staff to:
- Wash their hands thoroughly regularly throughout the day;
- Avoid touching their eyes, nose and mouth with unwashed hands; and
- Avoid contact with people who are sick (which may be impossible in the healthcare field).
While there is some evidence that wearing a face mask can protect against the transmission of the virus, their role is limited in real world situations. This is because we have to pay attention to NOT touching our faces when wearing them, to properly disposing of them, to put on a new one anytime someone coughing or sneezing around us and contaminates it, and to avoiding having a false sense of security when wearing one given it’s really hard to find one that fits perfectly around our noses and mouths, to keep it on for a long period of time and to not scratch our noses or touch our mouths behind the mask, as we’ve contaminated them!
Prevention – Workplace Harassment, Discrimination or Violence
Employers are reminded of their obligations under the Human Rights Code (Code) and the OHSA to maintain workplaces free from harassment, discrimination and violence on enumerated grounds such as disability, race, and place of origin, and other grounds.
While no decisions have been issued regarding the status of novel coronavirus as a “disability”, in 2003 the Ontario Human Rights Commission issued a statement indicating that the ground of disability would include SARS and that differential treatment of people who had or were perceived to have SARS, without bona fide medical evidence, could constitute discrimination under the Code.
Additionally, employers – and the employees they are responsible for – have an obligation to avoid assumptions and stereotypes that may interfere with equal participation in employment or access to goods or services that an employer provides. Many people have inappropriately associated the coronavirus with members of Asian communities due to the travel restrictions to and from the city of Wuhan, China, and Canadian travel advisories. There can be no differential treatment in the workplace that is based on a perceived risk of disease related to race or ethnicity or another protected ground. It is discrimination and harassment and/or violence can grow out of it.
If an employee is refusing to work due to a fear of contracting illness in the workplace, employers must respond in compliance with their legal duties under the OHSA, which permits workers to refuse work they reasonably believe is unsafe. Employers are generally required to investigate the employee’s concern and attempt to resolve the issue within the workplace without disciplinary measures, including consulting with the applicable workplace health and safety representatives. The reasonableness will depend on the particular circumstances of the workplace and available scientific evidence regarding disease transmission.
Under the Employment Standards Act, 2000 eligible employees are entitled to take 3 days of unpaid sick leave for personal illness, injury, or medical emergency per calendar year should they fall ill. They may also take up to 3 days of unpaid family responsibility leave per calendar year because of an illness, injury, medical emergency, or urgent matter relating to their family member as well as an unpaid critical illness leave of up to 37 weeks for a critically ill minor child and 17 weeks for a critically ill adult.
Confidentiality and Privacy Rights of Employees and Clients:
Employee personal information, including health information, must be kept confidential in the workplace. Where there employer is a health care custodian, there are additional obligations under PHIPA.
Sheryl Johnson is a Partner at Sullivan Mahoney. She has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment, labour, administrative and employment related privacy, cannabis, Aboriginal and Indigenous law as well as in civil litigation. She is the author of Sexual Harassment in Canada: A Guide for Understanding and Prevention. Email: firstname.lastname@example.org