The recent outbreak of the Ebola virus should remind employers they are required to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Employers need to create and implement policies and procedures to protect their employees while minimizing their impact on normal business activities.
According to Employment Conditions Abroad International, however, a respected provider of international HR data and services, which recently surveyed 189 companies, only half of multinational companies have policies in place to deal with international contagious illnesses.
In addition to having substantive business continuity plans in place employers should have up-to-date policies and practices relating to workplace safety, specific to the epidemic or pandemic in question.
Each epidemic or pandemic has its own dynamics and challenges. Employers’ policies should be tweaked, on a case-by-case basis, taking into account factors such as the manner of transmission, whether a vaccine exists, mortality rate, and other similar factors. In addition to such specific considerations there are a number of contentious issues, which generally always need to be addressed.
Human rights discrimination
An employer has to tread carefully when taking special precautions such as excluding certain employees from the workplace. Measures should only be taken based on hard scientific facts, published by a credible health authority such as the International Centre for Infectious Diseases or Health Canada.
In the case of Ebola, were it to spread to Canada, employers should only exclude employees who have been to West Africa or otherwise have been exposed to patients who are contagious.
During the SARS scare a few years ago, some employers attempted to exclude certain employees of Asian origin. Exclusions not based on scientific facts, directed toward a particular race, would likely constitute racial profiling, which is prohibited under Canadian human rights legislation.
Leave and telecommuting
Employers should not try to keep an employee who may have been exposed at work. They should be encouraged to take sick time or time off under medical and family leave legislation. Another option is to ask employees to telecommute. Lately, some employers have been discouraging telecommuting or underinvesting in telecommuting technology. In the face of an epidemic those decisions may come back to haunt them.
During the SARS outbreak, it was unclear whether quarantined employees, or employees who only came into work sporadically were eligible for paid or unpaid leave. Employers were required to consider whether leave should qualify as emergency leave, unpaid sick leave, or a temporary layoff. There was massive confusion.
Ultimately, the Ontario government passed legislation to address emergency leave provisions for SARS-related work absences. Employment Insurance regulations requiring medical certificates were also lifted for SARS as well as the mandated waiting period before claiming benefits.
There are provisions in Canadian employment legislation that allow employees to refuse work if they believe conditions in the workplace endanger their health and well-being (except for certain workers responsible for public safety). Retaliation against employees who exercise those rights is strictly prohibited. Employers are required to be reasonable when it comes to requests made by employees for special protective equipment.
Responding to those requests is often not straightforward and requires careful consideration. The same is true with employees refusing to travel to infected areas.
Following the outbreak of SARS, there was a general consensus among employers that employees who contracted SARS should be eligible for sick benefits. There was considerable debate, I recall, at the time whether employers were required to pay employees who entered quarantine as a precaution but were not actually sick. There were also questions asked regarding whether employees who voluntarily quarantined themselves due to fear of exposure were entitled to be paid.
In many cases, employers elected to be good corporate citizens and paid employees in all three categories, regardless of their legal obligations.
Medical certificates not always available
The realities of the situation may be that it is impractical to require a medical certificate to justify a leave of absence or benefits. For example, access to hospitals may be limited, clinics may be overwhelmed, and the availability of tests may be challenged. Employers may need to establish alternative means of proof, including questionnaires, telephone interviews, and the like to validate absence from the workplace.
The privacy of health-related information is well established in Canada. Employers are in a quandary however when they become aware that an employee has been infected or even more so that he or she may be infected or even just exposed.
In general, while the individual has a right to privacy, the state may temporarily suspend this right in case of serious public health risks, when revealing private medical information would help protect the public at large.
A related question that sometimes comes up is whether an employer can require an employee who is asymptomatic to undergo a physical exam, even if only to have his or her temperature taken? The answer appears to be yes, for the same reasons expressed above regarding ensuring overall public safety.
What is less clear is at exactly what point does the public good overshadow individual privacy rights? The answer in my view can only be answered case by case, there are no general rules of thumb.
Short-term disability coverage
Perhaps surprisingly, quarantines are not always covered in short-term disability plans. Plans are strictly interpreted so they often fall outside the scope of the plan. In the absence of coverage employers have often stepped into the lurch in Canada and extended STD coverage to quarantined employees.
An employee who suffers an injury or illness in the course of his or her employment is entitled to workers’ compensation coverage, including medical care and income replacement. Workers’ compensation coverage generally covers employees who become exposed to infectious diseases not only in their home province but also while travelling for business outside the country. There are a few exceptions employers should make themselves familiar with.
Duty to provide a safe workplace and negligence
An interesting question to ask is does an employer increase its liability by providing health advice to its employees in the form of a policy, or is the employer better off not having a policy?
My sense is failing to provide a contagious illness policy likely exposes an employer to greater risk of violating its duty to provide a safe workplace, or arguably to a class action suit for negligence. Employers are not medical experts. If they stray from the advisories issued by Health Canada and others they may potentially be opening themselves up to liability.
Best practice is to make health advisories available to employees sans interpretation, and to provide regular updates by some manner, which is likely to bring the information to the employee’s attention.
Generic and specific policies
Contagious illness policies need to be all encompassing. It may be prudent for employers to have a generic template ready, and a specific policy created and implemented on a case-by-case basis to address each health-related situation, taking into account some of the contentious issues highlighted above.