March 19, 2020

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Labour and Employment Update on COVID-19

 

On February 18, 2020, TDS published an outline of potential issues for Manitoba employers with regard to the novel coronavirus, COVID-19. At that time, no cases of COVID-19 had been reported within Manitoba.

On March 12, 2020, Manitoba reported its first presumptive case of COVID-19 (which was later confirmed). As of the date of writing, there are eight confirmed cases of COVID-19 and seven presumptive cases of COVID-19 in Manitoba. As a result, we have prepared an updated communication regarding issues to consider and best practices for Manitoba employers in determining their COVID-19 response.

As noted in our previous communiqué, the information below is meant to provide an overview of issues to which employers should be aware, but is not intended to provide a comprehensive review of all potential concerns. Employers and employees should also be mindful that additional considerations may apply to certain industries (such as health care, child care, or emergency response). Where a Manitoba employer is subject to federal regulation, similar considerations will likely arise, but employers should refer to the federal legislation for specific entitlements and protections for federally regulated employees.

This situation is evolving extremely quickly and, while the information provided below is accurate as of the date of writing, new government measures may be introduced at any time and best practices for employers will continue to evolve based on emerging information. We recommend that employers refer to the Manitoba government website for updates on new developments or restrictions.

Government Initiatives

 

Governments and health organizations are universally advising citizens of the importance of ‘social distancing’. All individuals are being encouraged to limit social contact to only what is necessary. As a result, governments across the world are announcing restrictions in order to facilitate social distancing and limit the spread of COVID-19.

At the time of writing, Manitoba has recommended that any social gatherings over 50 people should be cancelled. Manitoba has also announced that schools and most daycares will be closed at the end of the day on Friday, March 20. Many other businesses have voluntarily implemented temporary closures.

In other jurisdictions, governments have implemented measures such as ordering all non-essential businesses to close, or restricting restaurants to providing takeout and delivery only. These steps have not yet been taken in Manitoba, but such orders may be made with limited notice. As a result, employers should ensure that they are prepared to implement such an order quickly. 

Provincial governments in other Canadian jurisdictions have introduced legislation to address potential workplace issues such as sick note requirements and leaves of absence. To date, the Manitoba government has not introduced any such legislation, but that may change in coming days. We note that the chief public health officer of Manitoba commented on the need for our health care system to focus on the COVID-19 pandemic, not on signing sick notes.

At this time, the Manitoba Government is requiring that the following persons self-isolate for a period of 14 days:

  • Those who have returned from international travel within the past 14 days (including to the US);
  • Those who have contracted the COVID-19 virus (or are awaiting test results);
  • Those who have had, within the past 14 days, direct contact with someone who has contracted the COVID-19 virus; and
  • Lab workers who have been exposed to the COVID-19 virus.

If any employees fit within one of these categories, employers should require that they self-isolate and remain out of the workplace for at least 14 days.

On March 16, 2020, the Federal Government announced that the Canadian borders would only be open to Canadian citizens and permanent residents, subject to a number of exceptions (notably United States citizens).

Obligation to Provide a Safe Workplace

All employers have an obligation to provide their employees with a safe workplace, and to provide the information, instruction and training necessary to ensure the health and safety of their employees. If an employer has reason to be concerned that there may be a risk of exposure to COVID-19 in the workplace, the employer must take steps to protect their employees.

If there is reason to believe that an employee has been exposed to COVID-19 (either due to travel or contact with an affected individual), the employer should require the employee to stay home from work for a period of at least 14 days to ensure that the employee is not carrying the virus. Where an employee is exhibiting symptoms, employers should send the employee home and advise the employee to contact Health Links as soon as possible. We note, however, that employers must be cautious to ensure that, in doing so, the employer does not inadvertently discriminate against an employee or group of employees (as discussed later in this article).   

Employers may also have to address situations where employees are concerned that coming to work (or working alongside a certain employee or customer) will put them at risk of exposure to COVID-19.

An employee is entitled to refuse to work if they believe, on reasonable grounds, that working would constitute a danger to their safety and health. If an employee refuses to work, they are required to notify their employer immediately. The employer should then take steps to investigate the concern and should involve the workplace safety and health committee or representative (if one exists).

Most employers have likely already eliminated international travel and limited or eliminated domestic travel. Some travel medical insurers have indicated they will no longer provide coverage for COVID-19 related illness. While we recommend avoiding all travel at this time if possible, if it is absolutely necessary for employees to travel, employers must ensure that the travel and medical insurance policies in place for these employees provide appropriate coverage.

Human Rights Issues

In addition to employers’ obligations under employment standards legislation, employers must also be alive to potential human rights issues which may arise related to COVID-19. The Human Rights Code (Manitoba) states that employers cannot discriminate against employees on a number of protected characteristics, including:

  • Disability;
  • Ancestry, including colour and perceived race;
  • Nationality or national origin;
  • Family status;
  • Age; or
  • Ethnic background or origin.

It is not clear at this time whether COVID-19 itself would be considered to be a disability pursuant to The Human Rights Code (as short-term illnesses are not always considered to be disabilities), but there is a risk that discriminatory treatment of COVID-19 patients would be deemed to be prohibited discrimination. Human rights commissions in other Canadian jurisdictions have recently indicated that they are taking the position that COVID-19 constitutes a disability and differential treatment of employees with the virus will constitute impermissible discrimination.

There are additional human rights related issues which may arise. For example, there may be employees whose age or pre-existing disability puts them at greater risk from exposure to a respiratory illness such as COVID-19. If there is a material risk of being exposed to COVID-19, it may be a reasonable accommodation for the employer to take additional steps to keep such employees from exposure (such as permitting the employee to work from home). 

Employers must also ensure that precautionary measures implemented do not constitute indirect discrimination. For example, implementation of a rule requiring that employees of Asian origin take precautionary steps that are not required of other employees (in the absence of any specific evidence suggesting that the individual employee may have been exposed to the virus) would likely constitute a violation of The Human Rights Code.

The closing of schools and daycares may also lead to potential additional human rights issues. Employers are required to make efforts to accommodate employees’ legitimate family obligations, including childcare and eldercare. For example, an employee may request to alter shift schedules or start and end times to ensure that they are able to provide childcare. Such requests should be considered and efforts should be made to accommodate such requests, if possible.

Leaves from the Workplace

Under The Employment Standards Code (Manitoba), provincially regulated employees are entitled to a variety of leaves of absence. A number of these leaves may become increasingly relevant if COVID-19 continues to spread in Manitoba:

  • Family Leave (to deal with family responsibilities or personal illness);
  • Bereavement Leave (to deal with the death of a family member);
  • Compassionate Care Leave (to care for a seriously ill family member);
  • Long-term Leave for Serious Injury or Illness (for an employee with a long-term serious illness or injury); and
  • Leave related to Critical Illness (to provide support to a critically ill child or other family member).

The length of these leaves ranges from three days to thirty-seven weeks, and entitlement to each leave requires the employee in question to have been employed for a qualifying period. Employees may also be entitled to additional paid or unpaid leaves of absence pursuant to applicable collective agreements, individual employment agreements, or company policies.

Employers should consider what approach to adopt where an employee is not ill, but is under quarantine or there are concerns that the employee may have been exposed to COVID-19. Such employees may not qualify for sick leave or short-term disability pay.

If an employer is considering sending an employee home without pay, consideration should be given to whether such a step may result in a grievance or an allegation that the employee has been constructively dismissed. Where an employee wishes to take any action (such as travel) which may require the employee to self-isolate upon return, the employer may wish to ask the employee to provide written acknowledgement that they are prepared to take an unpaid leave for the purposes of quarantine upon return.

Employers may wish to be flexible in applying sick time, vacation, and leave policies. Overly rigid application may lead to employees coming to work when they suspect that they may have been exposed to COVID-19 – which is the last thing employers (not to mention clients and fellow employees) want to encourage.

Economic Impacts

It is now clear that COVID-19 will have far reaching economic impact in many industries. Most employers will already have taken steps to assess the likely impact and prepare. As the duration of restrictions is unclear, employers may wish to review their options in terms of limiting, increasing, or reducing workforces during this period depending on their industry and needs.

Where any changes are made to staffing levels, employers must ensure that any changes are consistent with obligations under The Employment Standards Code and accompanying regulations, as well as any applicable employment or collective agreements.

Employers should also ensure that employees are aware that they may be eligible for Employment Insurance with a waived waiting period. Dedicated telephone lines have been established and affected employees should be encouraged to contact Employment Insurance to inquire about benefits. In addition, the Federal Government has announced that additional programs will be introduced for individuals who are unable to work but do not qualify for Employment Insurance.

What can employers do now?

  • As always, employees who are in the workplace should be reminded about the critical importance of good hygiene practices to limit spread (thorough handwashing, not touching face or mouth, not shaking hands, etc.).
  • Add additional cleaning and sanitizing procedures, especially for frequently touched areas (doorknobs, light switches, shared equipment, etc.).
  • Ensure employees are educated regarding the importance of social distancing when not in the workplace.
  • Where possible, rearrange the workplace to provide distance between employees.
  • Limit all non-essential meetings. Consider conference calls or video conferencing in lieu of meeting in person.
  • Consider whether rotational shifts could be an option.
  • Assess which positions (or individual duties) could be performed remotely. Where possible, provide employees with equipment and training to allow them to work remotely.
  • Address any potential concerns with strain on remote computing systems or network security.
  • Employers may wish to request details regarding employee travel in order to determine whether employees should be required to stay home for a quarantine period.
  • Ensure that contingency plans are in place for decision-making if members of the senior leadership team are affected. While unlikely, it is possible that multiple key decision-makers could be unavailable at the same time.
  • As always, remember that the pandemic does not alter the right of employees to privacy with regard to personal health information. While disclosure of some information may be necessary, disclosure must be limited to what is absolutely necessary.

DISCLAIMER:
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

While care is taken to ensure the accuracy for the purposes stated, before relying upon these articles, you should seek and be guided by legal advice based on your specific circumstances. We would be pleased to provide you with our assistance on any of the issues raised in these articles.