The COVID-19 pandemic has raised a slew of unforeseen employment law concerns for workers.
As we move through the initial stage of the pandemic and into the next few months, some workers are facing an unexpected issue: what do they do if their employer tells them they can’t come into work because they are high-risk for COVID-19 transmission – for example, because of their own personal health characteristics or because they live with a front-line worker?
General Legal Principles
Normally, being told by your employer that you cannot come to work because of your predisposition for a certain health issue (either based on your own health characteristics or those of the people you live with), would likely trigger a recourse under human rights legislation and potentially a constructive dismissal claim. This legislation protects Ontarians from discrimination, including discrimination based on disability or perceived disability. The common law doctrine of constructive dismissal provides that an employer who makes unilateral and substantial changes to an employee’s terms of employment may be found to have effectively terminated that employee, exposing the employer to a claim against them for certain entitlements, including notice and severance.
Applying These Principles to the Pandemic
These, however, are not normal times. The Occupational Health and Safety Act (the “OHSA”) requires employers to take “every precaution reasonable in the circumstances for the protection of a worker” (section 25(2)(h)). COVID-19 may very well have changed what would normally be considered a “reasonable precaution”.
Although the OHSA does not define “reasonable precautions”, other legislation and public health directives can help guide us on what this might mean. On March 19, 2020, the Ontario legislature passed certain amendments to the Employment Standards Act, 2000 (the “ESA”) which, among other things, added a new job-protected leave to the ESA for employees who cannot report to work because they are “under a direction given by [the] employer in response to a concern of the employer that the employee may expose other individuals in the workplace” to COVID-19. This amendment expressly contemplates whether an employer can require an at-risk worker not to come into work.
In addition, on March 13, 2020, the Ontario Human Rights Commission (the “Commission”) published a policy statement on COVID-19 stating that employers “should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials”. Evidently, the Commission also recognizes that an employer may require at-risk workers not to come to work, if the employer’s concerns are reasonable and consistent with medical and public health guidance.
In terms of the guidance itself, the Ontario government has published a series of Public Health directives for various workplaces. The federal government has also published general guidance. Some common points include: self-isolate for 14 days if you have just returned from travelling abroad, limit contact with older adults and those in poor health/high-risk categories, and do not gather in groups.
What if I get sent home for being at risk?
Employers may be able to send home at-risk workers in order to prevent COVID-19 transmission – if, and only if, such measures are reasonable and in line with the latest medical and Public Health guidance.
As long as the employer’s decision follows such guidance and is reasonable (for example, requiring employees who have returned from abroad to self-isolate for 14 days), then it likely will not be found discriminatory under the Ontario Human Rights Code, given the policy statement published by the Commission. The employer should make every effort to continue paying the employee; if payment stops, then employers could expose themselves to a constructive dismissal claim.
If the employer oversteps the bounds of Public Health guidance (for example, sending home all employees who have taken a sick leave in the past 12 months, without any further specification), then their decision may no longer be considered a “reasonable precaution” and the employee may be entitled to certain remedies as a result. For specific advice on your workplace issues, please contact one of our experienced employment lawyers.