Employers have a duty under Ontario’s Occupational Health and Safety Act to protect the health and safety of their employees.
They must implement preventative measures to ensure employees are not exposed to conditions potentially harmful to their health and safety at work.
Failure to ensure a safe workplace can lead to significant liability, including fines and penalties and, in serious cases, criminal prosecution.
To meet their obligations to provide a safe workplace, it is critical that employers update and implement (and in some cases, post in the workplace) new health and safety policies and practices in their workplaces to address the risks associated with the COVID-19 pandemic, including as now required by Ontario’s new health and safety guidelines for all operating businesses.
So, what about employees who are to return to work?
IDENTIFY HIGH RISK EMPLOYEES
High risk employees, or those at more risk of contracting the virus or having more severe conditions, may include:
- older adults;
- those with weakened or compromised immune systems;
- those with underlying medical conditions, such as: hypertension, lung-related illnesses, heart disease, cancer and diabetes.
Employers should attempt to identify potential high risk employees, including by:
- requiring a self-disclosure policy, pursuant to which employees disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information); and
- taking measures to mitigate the risk for self-disclosed high risk employees, such as working from home or in an isolated area.
EMPLOYEES QUALIFIED FOR A TEMPORARY LEAVE OF ABSENCE
In Ontario, employees are eligible for a job-protected, unpaid leave of absence for specific reasons related to COVID-19, such as childcare issues (resulting from the closure of schools) or taking care of a sick family member. If an eligible employee, particularly under Ontario’s infectious disease leave of absence, request this leave of absence, it must be given by the employer, which cannot terminate the employee’s employ during the entire, permitted leave period.
If a qualified employee requests this leave of absence, employers should consider:
- implementing work at home arrangements, to the extent possible; and
- review their own employment agreement with the employee and their work workplace policies, to determine if the employee is entitled to paid leave of absence and, if not, recommend to the employee to apply for the CERB for income replacement benefits.
REFUSAL TO RETURN TO WORK DUE TO VIRUS CONCERNS
In Ontario, an employee has a statutory right to refuse work if he or she believes on reasonable grounds that the work constitutes a danger to his or her health and safety.
If an employee refuses to return to work due concerns about personal safety:
- the employee must report the hazard to the employer;
- the employer must ensure it is operating in accordance with Ontario’s new health and safety guidelines;
- the employer must take any necessary corrective action in a timely manner to address the hazard reported;
- if an employee believes their workplace remains unsafe, the employee may make a complaint to the Ministry of Labour of Ontario; and
- Ministry Inspectors have authority to enforce the legislation in several ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.
In every case, employers should ensure their accommodation policies and practices effectively address each issue on a case-by-case basis fairly, reasonably and in accordance with their legal obligations, pursuant to Ontario’s Human Rights Code. The Ontario Human Rights Commissions has clearly indicated that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace, such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).
