Breaking news – March 13, 2020
The World Health Organization has announced on Wednesday that the Coronavirus (COVID-19) epidemic may now be characterized as a pandemic. Following this announcement, the Legault government intervened in emergency mode to issue certain prohibitions and recommendations aiming to prevent the spread of the virus. Facing such a global crisis, employers should immediately adopt an action plan, if they have not already done so, in order to ensure the cohesiveness and relevance of their practices and policies, notably with respect to occupational health and safety and to the adequate management ofattendance issues. Frequent updates to such an action plan, following the latest developments of the situation, are also of the highest importance.
In this bulletin, we address the main issues which arise from the COVID-19 pandemic and which must be taken into account in the management of your human resources. Considering the evolving context of this situation and the particular issues which may be associated to certain industries, we invite you to seek appropriate legal advice concerning the elaboration and update of your action plan.
Employees exhibiting symptoms
The most common symptoms of COVID‑19 are fever, coughing, as well as difficulty breathing. An employer may withdraw an employee exhibiting such symptoms from work in order for the employee to consult a medical professional. He may also require a medical certificate attesting to the employee’s capacity to return to work without any risk for his colleagues when such symptoms have diminished.
Collecting information from employees
In accordance with theAct respecting Occupational Health and Safety(«AOHS»),the employer must take all necessary measures to protect the health, safety and physical well-being of its employees. Conversely, employees have the obligation of taking all necessary measures to ensure their health, safety and physical well-being, as well as the obligation to see that they do not endanger the health, safety or physical well-being of others in the workplace.
These obligations may justify an employer to collect certain information from employees. The extent to which such information may be collected must usually be considered in light of employees’ right to the respect of their private life, and must not exceed what isnecessary to meet the employer’s health and safety purposes.
In the current pandemic situation, the employer could require its employees to immediately disclose the following information to a designated employer representative, in a confidential manner:
- if they feel one or more of symptoms associated with COVID-19;
- if they believe they have been in contact with an individual infected by COVID-19 or exhibiting any of the associated symptoms;
- if they have travelled in the last 14 days or if they intend to go abroad, as well as the destination or itinerary of the prospective trip;
The employer’s designated representative should be adequately trained so as to be able to swiftly and adequatelyprocess the information.
Managing leaves of absence
An employee’s absence in the context of the COVID-19 pandemic may be caused by various elements which may justify a paid or unpaid leave, as the case may be:
- Disability.Anemployee who is suffering from some of the symptoms associated to COVID-19 and who is unfit for work within the meaning of a group insurance plan may avail himself of this protection. If he is not eligible to use a group insurance plan, and must leave work for medical reasons, he may be eligible to a protected leave of absencepursuant to theAct respecting Labour Standards(«ALS»). As per the ALS, an employee maybe absent from work, without salary,for a medical leavenot to exceed 26weeks over a 12-month period. In addition, an employee who is credited with three months of uninterrupted service may also be eligible to use two paid sick leave days. Furthermore, in certain cases, it is possible that an employee may be eligible to use banked leave days, which may be applied to such an absence. The employer could also evaluate the possibility that the employee use his or her accrued vacation days, if applicable.
- Family obligations.An employee may be required to miss work for reasons relating to his family obligations. In the context in which many schools have announced that they will be closing, we may anticipate the situation of an employee who must take time off in order to take care of a child. Such absence may also be necessary due to the fact that a family member is suffering from the virus. In accordance with the ALS,an employee may be absent from work for 10 days per year in order to meet obligations related to the care, health or education of his or her child, or of his or her spouse’s child.The employee who is credited withthree months of uninterrupted service may also be eligible to use two paid leave days. In this respect, we remind readers that in accordance with the ALS, the employer is only required to provide compensation for two leave days for medical reasons or family obligations (the first two days of absence). As previously mentioned, it is also possible that the employee is eligible to use banked leave days which may be used during such absence. The use of accrued vacation days may also be considered.
- Quarantine. In Québec, the prime minister has just announced at a press conference that all Province employees (public sector) are now under the obligationto place themselves in isolation for 14 days, with pay, if they arereturning from a trip (regardless of the country of destination) or if they exhibit symptoms similar to those of the flu.For the private sector, the prime minister requests the collaboration of employers and employees to voluntarily comply with these isolation measures and has announced that he plans to enact financial measures to compensate the employees which are affected. At the time of publication of the present newsletter, these financial measures have not been specifically defined. As to whether or not the employer must compensate employees who are returning from a trip and place themselves in voluntary home quarantine, this constitutes an unusual situation for which an absolute and certain answer cannot be immediately inferred. The employer should however adopt a clear position on this topic. An employer should consider, among other things, the possibility of requesting that an employee returning from a trip, regardless of the destination, places himself in home quarantine as a mandatory measure. In such a case, it would be appropriate to specify if the quarantine period will be compensated and how (personal day bank; vacation; other). The employer should consider the other issues which are associated with its decision to compensate or not to compensate a quarantined employee, including the risk that an employee may choose not to disclose a trip abroad in order to avoid a loss of income. The employer may also advise its employees that, starting today, if they decide to travel for personal reasons, they must place themselves in a quarantine upon their return, without any compensation. The employer should also discourage trips outside the country, in accordance with the recommendations issued by governmental authorities.
- Employment Insurance. It is important to recall that an employee who is absent from work for medical reasons may also be eligible for employment insurance. On this topic, the prime minister of Canada has recently announced in a press conference that funds have been made available in order to face the economic consequences of the COVID-19 pandemic, which would notably cover a waiver of the mandatory seven-day waiting period under theEmployment Insurance Act.
Evidently, in a unionized context, it will be important to consider the leave days which the collective agreement provides, as well as the applicable rules to use such leave days.
Right of refusal and preventive withdrawal
The pandemic brings its share of anxiety and concern, whether this sentiment is rational or not. In light of the announcement made by the Legault government and the rapid evolution of the situation, some employees, including those with a fragile health or those who are pregnant, may refuse to perform their work, fearing that they may be infected themselves.
In accordance with the AOHS, an employee may refuse to work if he has reasonable grounds to believe that his health and safety are compromised in the workplace. Each right of refusal must be analyzed on a case-by-case basis in accordance with applicable policies in your organization and with applicable legislation. The intervention of a CNESST inspector may also be required to determine if the exercise of a right of refusal is justified in the circumstances.
With respect to preventive withdrawals, in the absence of specific governmental instructions, usual CNESST procedures continue to apply.
Preventive emergency measures
Among the immediate and responsible measures, you may :
- Enhance hygiene measures and increase the disinfection of workstations, common areas and frequently used objects;
- Sensitize your employees with up-to-date and verifiable information, through the distribution of emails and/or through notices and posters;
- Promote telecommuting,videoconference meetings and telephone conference meetings as much as possible;
- Evaluate and test your IT infrastructures for remote work;
- Establish a contingency plan by evaluating, among other things,an effective and safe communication plan, alternative operation means for your business (i.e. different suppliers, other establishments), decreased activities, the risks of a potential closure and the minimal essential staff, etc.;
- Train your managers on the practical application of your action plan;
- Stay alert, as the Legault government has not ruled out taking more extensive measures with respect to the quarantine and isolation of the territory.
We are your partners at every stage for:
- Establishing or updating your contingency plan;
- Reviewing or drafting notices for your awareness campaign;
- Answering your questions regarding issues of compensation and leaves, in consideration of your internal policies and collective agreements;
- Discussing the establishment of other innovative preventive strategies.