What happens if there is coronavirus at work?
With Toronto Public Health confirming two cases of coronavirus in Toronto, and the Federal government preparing to fly the 160 Canadians (including a 15-month old whose parents are in Vancouver) in China back home, many people are becoming concerned that the coronavirus will spread in Canada.
Here is a quick breakdown for what employers, employees, and service providers need to know regarding potential workplace dangers like the coronavirus.
Obligations under the Ontario Occupational Health and Safety Act (OHSA)
Both employers and employees have an obligation to keep the workplace safe. For example, employers must make sure that appropriate equipment, materials, and protective devices are provided and maintained in good condition. Employers also must ensure that they properly supervise a worker to protect their health and safety. On the other hand, employees must uphold their end by wearing the proper equipment and work in compliance with OHSA. Further, employees have a duty to report dangerous work conditions, including improper protection or any hazard that may endanger themselves or others. Employees must report harassment too. Where an employee believes that that something at work will endanger them, they can refuse to work in those conditions and must report that to the employer.
If there is a reasonable basis to report that someone has a contagious disease that is easily spread, like the coronavirus, then an employee is obligated to report it and may have grounds to refuse to report to work.
OHSA protects employees who report workplace health and safety concerns to their employers through the Reprisal provisions of the Act. What this means is that employers are not allowed to punish or retaliate against workers who may report a safety concern (including harassment). Examples of retaliation are reducing pay, reducing working hours, and termination of employment.
In one recent decision, David Knapp v Greenbank Custom Woodworking Ltd., a cabinet maker told their employer that he was concerned about lack of ventilation at work, tight welding spots, spray paint used in the shops, and the lack of guards on the saws. The very next day, the employer terminated his employment. The Ontario Labour Relations Board found that one of the reasons for the employee’s termination was his reporting of workplace health and safety concerns. The Labour Board ordered the employer to pay the employee almost six months of wages ($25,200), damages for loss of the job ($4,200), and money for his pain and suffering ($2,500). The employee could have also got reinstated to his position, but he did not pursue this option at the Labour Board.
Under OHSA, all parties have a part to play in ensuring the workplace is safe. This includes being safe from all types of dangers including a workplace’s physical surroundings, physical violence, and harassment. Employees should not hesitate to report their concerns as OHSA provides that an employer cannot punish them for making such reports.
Human Rights Discrimination – Race
On one of the morning programs on NewsTalk 1010 today, a guest said he heard some individuals expressing a view that people should stay away from Chinese people, due to the fear of contracting coronavirus. This is perhaps an overly concerned approach to take, but very likely a discriminatory view. Obviously, employers and service providers are prohibited from preventing all Chinese people from attending their premises. This is discriminatory as employers and service providers are not allowed to consider someone’s ethnicity, race, or place of origin into account. On the other hand, if an employer temporarily prohibits an employee from attending the workplace if they just got back from Wuhan, China, then that would not be discriminatory as employers have an obligation to keep the workplace safe.
Human Rights Discrimination – Disability
Can an employer dismiss an employee if they actually have the coronavirus? Yes, if we are strictly looking at this situation through an employment law lens. After all, an employer can let an employee go, without cause, for any reason or no reason at all if they provide them sufficient notice of termination or payment in lieu of notice, i.e. a severance package.
However, employers must account for human rights and discrimination when it comes to employee terminations. One reason that an employer cannot rely upon for a termination is disability. Disability comes in all forms, including mental disabilities (e.g. anxiety, depression), and physical disabilities such as a broken arm.
But what about the coronavirus? Is that a disability under the Human Rights Code? That is still to be determined as the health experts get a better understanding of the virus. For the Ontario Human Rights Tribunal and the courts, a temporary, common illness will not be considered a disability. The flu, for example, is not considered a disability and employers are free to use this as a reason for termination. While some may say the coronavirus is potentially deadly, many Canadians also die due to the flu each year. Deadliness of a condition does not seem to matter to the Tribunal.
Summary – Don’t Panic, Cooperate
Despite coronavirus dominating the news cycle, the various health agencies in Canada seem to be on top of it. For employees and employers, this new scare is a good reminder for everyone’s obligations to ensure that the workplace remains safe.
Jason Wong is a Toronto employment lawyer practicing employment, labour, and human rights law. He can be contacted at jason@wongemploymentlaw.com