Considering COVID-19 and Employment Law in Ontario

COVID-19 raises multiple questions about health, safety, and employment law. The answers to many of these questions are highly fact dependent and the law around these issues is subject to change.

Both employers and employees have numerous duties and rights under the law. In Ontario, an employer has a general obligation under s. 25(2)(h) of the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.” Reasonable precautions may include encouraging hygiene such as washing hands thoroughly, encouraging employees to not attend the workplace when sick, and informing employees of leave policies.

Part V of the Occupational Health and Safety Act is about a worker refusing dangerous work. According to Section 43(3)(b): “A worker may refuse to work or do particular work where he or she has reason to believe that… the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself.” Numerous critical professions, including doctors, nurses, firefighters, correctional officers, and the police, may be exempted from this provision of the Act; however, in general employees coming into contact with a genuine danger in the workplace, or who fear that they may come in contact with it, may decide to seek to exercise their right to refuse work under s. 43(3)(b) of the Act. The work refusal starts when the employee notifies the employer of the danger. The law prohibits an employer from punishing or threatening discipline upon an employee who reasonably refuses work that is or may be dangerous. Section 66 of the Act states that an employer who contravenes this law may be forced to pay a monetary penalty. 

Section 50 of the Employment Standards Act of Ontario provides that an employee is entitled to unpaid leave of absence. “An employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.” At the time of this writing, employees of provincially regulated industries have rights to three unpaid sick days per year. Most employees in Ontario work in provincially regulated employment, but employees of federally regulated industries, such as banking and airlines, are entitled to a minimum of five sick days per year. Federally regulated employees with more than three months of service are entitled to three paid sick days per year, under current minimum employment standards. 

Section 50(3) and (4) of the Employment Standards Act of Ontario is about communication. An employee who wishes to take leave under section 50 of the Act must advise their employer that they will be doing so, or as soon as reasonably possible after beginning the leave. Section 50(6) generally allows an employer to require the employee to demonstrate proof, such as with a medical note.

These provisions under the Employment Standards Act, however, may be changed with new legislation from government. For example, the provincial government of Ontario recently announced that it intends to introduce legislation that allows job-protected leave to employees in isolation or quarantine due to COVID-19 or those that need to be away from work to care for children because of school or day care closures; medical notes may not be needed by the employers if they take sick leave for COVID-19. Furthermore, employees may be entitled to additional sick days, with or without pay, under a collective bargaining agreement, workplace policies, or employment contract.

The Ontario Human Rights Code protects people in Ontario in certain social areas such as employment from discrimination based on the protected grounds of the Code, including gender, race, ethnicity, country of origin, sexual orientation, disability, and family status. The Human Rights Tribunal of Ontario has interpreted the Code to mean that an employer has a duty to accommodate the child care needs of an employee up to the point of undue hardship. Undue hardship varies depending on the size and capabilities of the employer, and the child care needs of the family should not be mistaken with mere preferences. Further, an employee in such a case has a duty to try multiple alternatives and efforts in order to avoid missing their employment, and may need to demonstrate proof of such efforts in the event of a dispute over the matter. An employee likewise has a duty to cooperate in the accommodation process with their employer and may need to even compromise in view of the employer’s needs.

Section 10 of the Ontario Human Rights Code defines disability as “any degree of physical disability, infirmity… illness”. The Code requires that accommodation up to the point of undue hardship need be provided in response to an employee's valid request for accommodation on the basis of disability. On March 13 of 2020, the Ontario Human Rights Commission released a policy statement on COVID-19 wherein it suggested that a COVID-19 illness may be under the protected ground of disability. The Commission stated: “The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.” The Ontario Human Rights Commission does not determine how the Ontario Human Rights Tribunal decides on individual cases and interprets the Code, but the Tribunal can be required to consider the policies of the Commission during decision making.

Information about employment law is subject to change and dependent upon ongoing developments. How legislation, policy, and the decisions of courts and tribunals affect your context is very dependent on the specific facts of your particular situation, and whether your workplace is unionized or has an employment contract. These paragraphs are informational only and do not constitute legal advice.

If you are an employee or an employer and have questions related to COVID-19 and your rights and duties, before taking any action it may be suggested to you to seek legal advice or representation promptly.

Despite widespread uncertainty during these times, the current challenges are a strong reminder of the need to invest in and support social services such as health care and education, and have acceptable minimum employment standards in Ontario and across Canada.

References:

Occupational Health and Safety Act, http://canlii.ca/t/54487

Employment Standards Act, https://www.ontario.ca/laws/statute/00e41#BK99

Ontario Human Rights Code, https://www.ontario.ca/laws/statute/90h19#BK12

OHRC policy statement on the COVID-19 pandemic, http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-pandemic

Government of Ontario, https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave