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COVID-19: Employment Law Tips for Ontario’s Primary Care Health Sector (GUEST BLOG)

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This blog post is written by Maria McDonald of McDonald HR Law

COVID-19 and the Primary Care Workplace

Public Health Ontario Guidelines

Primary healthcare employers have been receiving daily updates from Public Health Ontario regarding
COVID-19 practice guidelines.These guidelines are intended to protect the safety of patients and employees. It is vitally important that primary health care employers follow the guidelines provided by Public Health Ontario. Public Health Ontario is conducting inspections of primary healthcare clinics. These guidelines are also important if an employee refuses to work due to health and safety concern.

Work Refusals under the Ontario Occupational Health and Safety Act (“OHSA”)

Generally, employees who work in primary healthcare settings may not be excused from work because
of the presence of a virus, including but not limited to COVID-19. But primary healthcare employees can expect their employers take all precautions reasonable in the circumstances for the protection of its employees. These protections include infection control measures, i.e. provision of a N95 respirator
when providing care to a patient with COVID-19.

The Public Health Ontario’s guidelines are precautions that an employer should comply with to meet its obligations under the OHSA.

Process
Employers may face a situation where an employee refuses work because of the potential of COVID-19 exposure in the workplace. If a work refusal occurs, the OHSA sets out a specific process that employers must follow (see Section 43 of the OHSA) . A visual Process Guide for Work Refusals can be accessed on the Ontario Ministry of Labour website.

The process is as follows:

a. You and a member of the JHSC or H/S Rep. must meet with the employee to investigate and discuss the concerns. I recommend you review Public Health Ontario’s guidelines with the employee to satisfy him or her that the organization has put adequate infection control measures in place.

b. If the employee still refuses to work, the employer must contact the Ministry of Labour. The toll free number to report a work refusal is 1-877-202-0008

c. The Ministry of Labour (“MOL”) will send an inspector to investigate. The MOL inspector will likely review your infection control measures to determine if the employee has a “reason to believe that unsafe circumstances” exist. I note the Ministry of Labour has posted the Public Health Ontario’s guidelines on its website. As such, I expect the MOL inspector’s determination will be made with reference to this guidelines.

d. If the MOL inspector determines the employer must implement more appropriate measures to make the workplace safe, he/she will issue a direction to the employer. The employee will return to work if the changes are made.

e. If no changes are required, the employee must return to work.

MOL Decisions on Work Refusals
Each case will be decided on its own facts and on a case by case basis. In all likelihood, it is doubtful the MOL will uphold a work refusal if the measures in the guidelines have been implemented.

I can tell you that the work refusal section of the OHSA (Section 43) was successfully used by a nurse during the SARS outbreak in 2003. The nurse exercised her right to refuse work when her employer requested she care for a SARS patient without being fitted with the required N95 respirator. The MOL ordered the nurse not be required to care for a SARS patient until she was properly fitted with the respirator and ordered the employer to develop a plan to immediately fit test all workers.

However, the MOL is not likely to support a work refusal where the danger is not immediate (i.e. a medical receptionist working behind a glass screen) or where the proper protection measures have been implemented. Again, this is why it is important to ensure you have applied Public Health Ontario’s guidelines to your work place.

Miscellaneous
Pending the MOL inspection:

  • The employee must be paid during the first stage of the work refusal; that is when the employer is investigating the concerns and discussing them with the employee. However, if the matter is not resolved and an inspector is called, the employee does not have to be paid pending the inspection.
  • You can have another employee do the work, but you must advise them of the work refusal. This must be done in the presence of a member of the JHSC or H/S Rep.
  • Employees cannot be punished or disciplined or face any type of reprisal for the work refusal. However, they can be disciplined if they refuse to work after the MOL inspector advises the workplace is safe. I recommend you contact me for legal advice before disciplining an employee for a continued work refusal or issuing any type of negative directive to an employee following a work refusal.

Mandatory Absence for Employees Returning from Overseas Travel

This is one of the toughest employment issues facing employers.

It is vitally important that everyone take proactive steps to try to contain this virus. This is most important in the healthcare setting. We need our healthcare workers healthy. We need to protect the vulnerable people who visit our health clinics.

At this time, the number of people infected in Ontario is low and travel abroad appears to be the most prevalent way of contracting the illness.

As such, it may be reasonable for employers to implement a policy that if an employee or any member of their household returns from an affected area (as per the Government of Canada’s Active Travel Health Notices List), that they be required to stay away from the work place for a period of 14 days (“quarantine period”).

The issue is whether employees must be paid for the quarantine period. These are unchartered waters and the answer is unclear. The government health authorities have not issued any general quarantine directives and the safest measure (from a legal perspective) would be to provide paid leave. But this may not be feasible for many employers. As such, it is likely reasonable for this leave to be unpaid, especially if employees knowingly traveled to affected areas after the WHO declared a pandemic on March 11, 2020.

Recognizing that two weeks without pay may cause significant hardship to employees, employers should work with employees to cushion the impact by allowing employees to:

  • Work from home
  • Use paid sick leave or personal leave
  • Use accrued (or even unaccrued) vacation pay
  • Use accrued lieu time

These policies have not been tested by the court, as such, employers must face legal challenges such as constructive dismissal claims or even human rights claims (although I think the latter has a low chance of success due to the pandemic status and the Government listing of affected areas).

If you implement such a policy; it is important to clearly communicate to employees our collective responsibility to protect the health and safety of patients and colleagues.

Leaves of Absence for Sickness due to COVID-19

Absence due to COVID-19 illness is no different than any other illness. There is NO mandatory duty to pay for a leave of absence beyond your normal leave policies.

Employers must look to the regular sources for time off work:
a. Time away from work policies – Usually some allowance for paid days
b. ESA UNPAID leaves of absence

  • Family Resonsibility Leave (3 unpaid days)
  • Personal Sick Leave (3 unpaid days)
  • Family Medical Leave (28 weeks unpaid)
  • Family Caregiver (8 weeks unpaid)
  • Critical illness – child (37 weeks unpaid)
  • Critical illness – adult family member (17 weeks unpaid)

c. WSIB benefits (if the employer is registered)
d. Employment insurance benefits – Many of the ESA unpaid leaves (especially the leaves with longer durations) make the employee eligible for EI benefits
e. Short term and long term disability benefits
f. Vacation time
g. Lieu time

Please contact Maria McDonald if you have any questions at McDonald HR Law  maria@mcdonaldhrlaw.com


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