This week, BC’s Minister of Health and the Provincial Health Officer announced that the first case of novel coronavirus (2019-nCoV) has been confirmed in British Columbia.
The BC Centre for Disease Control (“BCCDC”) has detailed information on its website about the coronavirus, its signs and symptoms, and recommendations for precautionary measures to follow.
Although the BCCDC reports that the risk to British Columbians relating to coronavirus is currently low, there are a range of legal issues for employers to consider in these types of circumstances.
Below we set out some common questions and general information for employers. However, any employer dealing with specific issues relating to coronavirus in the workplace should seek legal advice, as various factors such as the industry of the employer, any workplace policies, and collective agreements or employment contracts, may impact the appropriate course of action.
Q: Do employers have any legal obligations relating to infectious diseases in the workplace?
A: Yes. Employers in BC are required under occupational health and safety laws to protect their workers from work-related hazards, including any infectious disease that is found in the workplace that may pose a risk to workers.
WorkSafeBC has published guidance material, ‘Controlling Exposure: Protecting Workers From Infectious Diseases’, that address an employer’s obligations in these circumstances. These include:
- identifying infectious diseases that are, or may be, in the workplace;
- developing and implementing an exposure control plan, when required;
- educating, training and supervising workers on safe work procedures, including hand washing and the proper use of personal protective equipment; and
- telling workers to see medical attention, as required.
In essence, employers must take all reasonable preventative measures, which in the context of coronavirus may include directing employees not to attend work if they are displaying relevant symptoms or there is a reasonable basis for concluding that there is a heightened risk of infection (discussed further below).
Q. Is an employee allowed to refuse to work if they are worried about coronavirus in the workplace?
A: Under BC’s occupational health and safety laws, an employee has the right to refuse unsafe work. Broadly, to be entitled to refuse work an employee must have reasonable cause to believe that performing the work would create an undue hazard to the health and safety of themselves or another person. If that is the case, the employee must immediately report the unsafe condition to the employer. An employer then has an obligation to investigate the matter and address the issue in accordance with procedures set out in section 3.12 of the OHS Regulation.
In the context of the coronavirus, any refusal to be perform work should be taken seriously by employers. While the risk of disingenuous refusals to perform work is always possible, given the media attention focused on the issue and misinformation that can circulate in these situations, the prudent course is to respect the refusal pending investigation of the issue and seek to identify arrangements by which the work can be performed which address the risk while that is occurring (an example may be allowing the employee to work from home).
Q: Is it lawful for an employer to prohibit an employee from attending at the workplace if he or she may have been exposed to coronavirus?
A: Possibly, although care must be taken so as to reduce the risk of a legal claim (for example, a complaint to the BC Human Rights Tribunal, or an allegation of constructive dismissal).
If an employee has a heightened risk of infection (because, for example, he or she recently travelled to Wuhan, China) or an employee discloses that they are suffering symptoms consistent with the coronavirus, it may be reasonable to direct the employee remain away from the workplace until the employee can provide medical clearance confirming that they do not have the virus.
If the issue is merely potential exposure to the virus even though the employee is not demonstrating any symptoms at the time, employers should consider whether alternative work arrangements can be implemented on a temporary basis to permit the employee to continue to work from home. Even if work from home is not possible, if an employer is requiring an employee to stay home, the most prudent course of action is to continue to pay the employee’s wages and continue any benefits coverage during the period away from the workplace.
Q: Is an employee who is displaying symptoms of coronavirus entitled to take paid sick leave?
A: Any employee who is ill due to the coronavirus should be treated in the same way as other ill employees.
Employers should apply the terms of their sick leave policies, including eligibility and procedural requirements.
Generally, if an employee is entitled to paid sick leave under a workplace policy or employment contract, he or she will be able to claim sick leave benefits due to a coronavirus infection. If an employer does not provide paid sick leave benefits to its staff, it has no legal obligation to provide paid sick leave in circumstances of a coronavirus infection.
Ultimately, employers should be prepared to be flexible and reasonable in dealing with individual employee circumstances to avoid both potential legal claims and the risk of damaging public relations issues arising.