COVID-19: What are the employer's obligations?

While the governments of Quebec and Canada have already announced a series of measures to slow the spread of the virus, what measures can or should be put in place by employers?

Here are answers to the most common questions raised by employers in relation to the management of the COVID-19 pandemic.

1. What are the employer's obligations in the context of managing the COVID-19 pandemic?

The employer must take the appropriate measures to protect the health, safety and physical well-being of its workers, particularly in the context of the spread of contagious viruses such as COVID-19. The employer must provide a hazard-free work environment and remain informed as to the health of its employees.

In order to meet these obligations, the employer should implement preventive measures in the workplace, including those recommended by governmental authorities.

2. What health measures should an employer put into place within its organization to protect its employees?

Amongst other things, the employer should:

• Ensure that employees do not report to work if they have symptoms of fever, cough or breathing difficulties;
• Question an employee who has flu-related symptoms;
• Encourage employees and visitors to adopt proper hygiene practices. For example, an employer should post signs demonstrating proper hand washing technique, encourage employees and visitors to cough or sneeze into their elbow and to avoid touching their eyes, nose or mouth with unwashed hands;
• Provide employees and visitors with the necessary means to promote good hygiene, such as hand sanitizer and other disinfectant products;
• Arrange for more frequent cleaning of potentially contaminated surfaces, especially in common areas;
• Take appropriate action if employees or visitors are symptomatic, for example, by restricting access to the workplace or specific areas;
• Reserve their right to question symptomatic employees or visitors;
• Demonstrate their proactiveness by detailing the measures taken to prevent the spread of COVID-19, including all limitations to access to the workplace, and post said measures at the various entrances to the workplace;
• Recommend that employees avoid any physical contact with others. 

3. What strategies should an employer put in place to reduce the risk of contagion and to accommodate its employees?

The employer should ensure that clear policies are put in place to address COVID-19, particularly policies on workplace behaviour, absenteeism, telework and travel.

When possible, the employer should encourage telework in order to limit the risk of spreading the virus. As of March 12^th, 2020, governmental authorities have encouraged that employers adopt this practice considering the situation surrounding COVID-19.

The employer is encouraged to limit or even cancel meetings, gatherings, social events or other activities where the presence of employees is required. The use of communication technologies such as Skype should be a preferred alternative.

4. What information can an employer request from its employees in order to assess the risks of contagion?

In order to assess the risks and ensure appropriate follow-up of the situation, the employer can ask its employees if they have travelled outside of Canada in the last few weeks and, in the case of an affirmative answer, their destination and date of return. The employer can also require to be informed of any upcoming foreign travel, regardless of the destination.

The employer can also question their employees to find out if they have symptoms associated with COVID-19 or if they think they have been in contact with a person suffering from or showing symptoms of COVID-19.

Once the information has been obtained, the employer should ensure appropriate follow-up with its employees, as symptoms of COVID-19 can take up to fourteen (14) days to appear.

5. Can an employer require an employee returning from a trip abroad to isolate themselves for fourteen (14) days?

An employer may impose a period of isolation on an employee if there are reasonable grounds to do so, in accordance with the employer’s obligation to protect the health and safety of its employees. 

Governmental authorities recommend a fourteen (14) day period of self-isolation following any foreign travel. Should an employer impose a fourteen (14) day period of isolation on a foreign worker who arrives in Canada under an immigration program and who must begin their employment with the organization?

According to the directives announced by the government, the worker should be placed in isolation for fourteen (14) days upon arrival. Directives issued by government authorities should be followed by the employer to limit the risk of spreading COVID-19 within the organization. In this context, there may be certain rules of compliance to follow regarding the payment of the temporary foreign worker's salary during the isolation period, depending on the immigration program under which the worker was hired. For example, if you have hired a foreign worker under the Temporary Foreign Worker Program, it is recommended as a best practice to maintain the worker's remuneration during the period of isolation, so as not to pose any problems in terms of the employer's compliance with the program's rules should there be any future investigation into the matter.

6. How should an employer manage the return of an employee who has travelled to, and returned from, a risk area?

The employer should follow the recommendations of governmental authorities in this regard and ask the employee returning from a trip outside Canada to follow the fourteen (14) day voluntary isolation protocol currently in place.

7. How should the employer respond if an employee displays symptoms of COVID-19 in the workplace?

The employer should promptly isolate the employee from the workplace, impose a fourteen (14) day isolation period and suggest that the employee seek medical attention, if necessary.

It should also be noted that the Collège des médécins (College of Physicians) announced that going forward, nurses are authorized to issue a note to those who test positive for COVID-19 to be off work for fourteen (14) days.

8. Does an employer remain responsible for the remuneration of an employee who is absent due to preventative isolation?

The choice of whether to pay an employee who is absent due to preventative isolation varies from one employer to another and largely depends on internal policies, a collective agreement, a group insurance plan and other applicable measures within the organization. In some cases, the employee may also have access to group disability insurance or employment insurance.

On March 13^th, 2020, the Minister of Labour announced that measures would be announced in the upcoming days to support private companies whose employees will have to be absent, as well as to support employees who will be absent without pay.

9. Does an employer remain responsible for the remuneration of an absent employee who has contracted COVID-19 or who is showing symptoms?

As previously mentioned, remuneration will vary from employer to employer and depends on, amongst other things, existing working conditions. In the case of COVID-19, the absence will be considered like any other absence due to illness.

10. In the event that an employee must be absent from work because of school and daycare closures, and has already taken the ten (10) days provided for in the Act respecting labour standards for family commitments or that their absence exceeds them, can the employer refuse the employee’s absence?

Given the present exceptional circumstances, even if the number of absences taken by an employee exceeds the number of absences provided for in the Act, the employer should remain very open and understanding before refusing any leave and demanding a return to work. We still believe that an employer can question the employee about the actual reasons for the absence and, in the case of childcare, about looking into alternative means, but flexibility is essential. Each case must be carefully considered before refusing requests for any leave beyond what is provided for by the Act.

11. What financial measures are being put in place by governmental authorities to help employers and employees deal with the consequences of the spread of COVID-19?

The Government of Quebec has invited employers to be more accommodating, particularly in light of the numerous requests for absences that will likely occur in the upcoming weeks. Government assistance is also expected to be announced shortly, so the situation must continuously be monitored.

At the federal level, the government has relaxed the rules related to employment insurance in order to help Canadians affected by COVID-19 or placed in isolation. As a result, employees who are unable to work due to illness or quarantine will be able to receive EI sickness benefits. In the case of these claims, the one (1) week waiting period is waived and applications should be processed on a priority basis.

Other measures are also being considered, specifically to help people who would not normally be eligible for EI sickness benefits. Seeing as the situation is evolving rapidly, employers should remain informed and closely monitor new developments.

12. Can an employee benefit from the coverage provided for in the group insurance contract should they need to absent themselves due to COVID-19?

Some insurance companies have published specific information related to COVID-19. With respect to group insurance, an employee who is absent from work after having contracted COVID-19 should be able to benefit from the short-term disability clauses provided for in the insurance contract.

As for a person who is placed in isolation for a certain period of time, the person could potentially be covered by their short-term disability insurance coverage. This will vary according to each group insurance policy and will have to be verified on a case-by-case basis.

In order to be proactive, we therefore suggest that employers with group insurance policies validate the short-term disability coverage offered by the insurer to support employees.

13. What must an employer indicate on the Record of Employment form for an employee to receive EI benefits in relation to COVID-19?

Keep in mind that governmental authorities may provide specific instructions on the code to be used and it is therefore important that employers inform themselves prior to issuing the form. Since no such instructions exist to our knowledge as of today, we recommend the following:

A) if the employee is ill code D;

B) if the employee is absent due to a period of isolation code K;

C) in the case of a lay-off: code A.

14. Can an employee refuse to work because of COVID-19?

The Act respecting occupational health and safety provides that an employee may refuse to report to work should they have reasonable grounds to believe that the performance of their work would expose them to a danger to their health, safety or physical well-being or may also expose another person to a similar danger. In such situations, the employee's wages should continue to be paid, and the employee should not be subject to any measures.

However, an employee may not refuse to report to work simply out of fear of contamination if their work environment does not facilitate contamination and if the employer complies with all the preventive measures recommended by governmental authorities. In a case of an unjustified refusal, the usual rules of unjustified absence apply.

15. What restrictions can an employer impose on its employees regarding future foreign travel?

The employer should cancel all business trips of their employees unless they are necessary.

While an employer cannot prohibit personal travel, employees can be required to disclose whether they plan to travel outside of Canada. The employer should strongly encourage employees to remain in the country and advise employees that should they decide to travel abroad, there are significant risks to their ability to return home or return to work. Employees should also be informed that they will be subject to a period of mandatory isolation upon their return, in accordance with government recommendations in effect at the present time.

It should be noted that Canadian governmental authorities have recommended that everyone avoid unnecessary travel abroad.

For any additional questions and for advice on how to properly manage the current COVID-19 situation, please contact our Labour and Employment Law team who shall be monitoring any and all developments for you and your business.