The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
Under provincial workplace health and safety laws, Ontario employers have an obligation to take every reasonable step to ensure a safe workplace. This applies to the novel coronavirus (COVID-19) as well.
You may be wondering what your employer can and cannot ask of you during this pandemic.
Today, Ontario enacted a Declaration of Emergency to protect the public and help contain the spread of COVID-19.
SEARCH BY TOPIC...
What is the Novel Coronavirus?
Coronaviruses are a large family of viruses that can cause illnesses ranging from the common cold to more serious respiratory infections like bronchitis, pneumonia or severe acute respiratory syndrome (SARS). They are spread mainly from person to person through close contact (touching or shaking hands). COVID-19 is the 2019 novel coronavirus, which causes a respiratory infection and originated in Wuhan, China.
Symptoms range from mild to severe and can include fever, cough, difficulty breathing and there are no specific treatments for coronaviruses.
Right to a safe work environment
Under the Ontario Occupational Health and Safety Act (OHSA) workers have the right to refuse to work in a workplace they have reason to believe is likely to endanger them.
Under the Canada Labour Code, employees have 3 basic rights which are the right to know, the right to participate and the right to refuse dangerous work.
Freedom from Discrimination
All employees have the right to be treated equally under the Ontario Human Rights Code, and this includes treatment of employees that have or are thought to have COVID-19.
Employers have an obligation not to discriminate on the basis of race, ethnicity, place of origin, ancestry or disability. This means employees should not be subjected to any unlawful stereotyping, discrimination and harassment on one of the defined grounds for discrimination.
Duty to Accommodate
The Ontario Human Rights Code stipulates that employers have a duty to accommodate employees up to the point of what is known as undue hardship.
Many employers are offering work from home options to allow their staff to continue working in a safe environment and to reduce the number of people in office.
Sick Leave Policies
Will you still be paid while being off work due to the coronavirus?
Sick leave policies vary from business to business and different factors come into play with respect to an employee's right or ability to take a paid or unpaid sick leave. These factors include how long you have been an employee, what your employment contract says, what policies your employer has put in place (and whether they are a term of your employment contract), and whether you are in a unionized workplace. Subject to any workplace policy or collective agreement, if you are a member of a union, time off due to illness or quarantine can be unpaid.
Your employer may offer you the option of using your paid vacation or sick days so you can be paid for your time away from work.
You may also have access to short-term disability benefits and consider applying for that benefit if you are ill.
Ultimately, an employer cannot generally force you to work if you are clearly unwell, are under appropriate medical care, and your absence is supported by your doctor.
Employment Insurance (EI) Benefits
In the absence of company paid sick leave benefits/disability benefits, employees may apply for EI sickness benefits. Under the Employment Insurance Act, employees who face a reduction in normal weekly earnings of a minimum of 40% due to illness, injury or quarantine are eligible for these benefits (if they have accumulated the required insurance hours).
EI sickness benefits provide up to 15 weeks of income replacement and this benefit is available to eligible employees who are unable to work because of illness, injury or quarantine
As a result of COVID-19, the 1 week waiting period for EI sickness benefit has been waived for new claimants who are quarantined. People who apply for EI sickness benefits due to quarantine do not have to provide a medical certificate.
Changes to the Employment Standards Act
Currently, the Employment Standards Act protects employees from job loss when they take unpaid sick leave (for a specified number of days) in the event of personal illness, injury or a medical emergency, family responsibility leave, family medical leave, family caregiver leave and critical illness leave.
It was announced that the Ontario government will be introducing new legislation to amend the Employment Standards Act to provide job protection for employees who are unable to work for reasons relating to COVID-19 such as:
An important change is also that employees will not have to provide a medical note if they take leave for one of the above reasons. If passed, these measures would be retroactive to January 25, 2020.
In general, employers are not entitled to know an employee’s medical diagnosis.
As COVID-19 poses a risk to those you come into contact with, your employer may ask for some limited medical information if you exhibit symptoms or if you advise them that you are experiencing flu-like or other symptoms of the virus.
Your employer should advise you why certain medical information is needed, what information will be disclosed and to whom, and how the information will otherwise be kept confidential. It would not be unreasonable to respectfully request this information from your employer.
Your employer should only provide potentially exposed employees with enough information to obtain the necessary medical advice and treatment if necessary.
* The content of this page is intended to provide a general guide to the subject matter and does not constitute medical or legal advice.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario