The total confirmed A/H1N1 influenza (“swine flu”) cases in Canada numbered 165 on Wednesday, as Nova Scotia, Ontario, Alberta and New Brunswick reported new cases, and Prince Edward Island confirmed its first two cases. According to the World Health Organization, 21 countries have officially reported 1516 cases of swine flu to date.
In light of the danger this new flu strain poses, it is important that employers understand their legal obligations and what they can do to be proactive about preventing the spread of swine flu. Prevention and containment of the virus must be managed in accordance with the following considerations:
The Occupational Health & Safety Act
Under the Ontario Occupational Health and Safety Act, (“OHSA”), employers have a duty to provide a safe workplace and must take reasonable steps to fulfill this duty.
Pursuant to the OHSA, employees have a right to refuse work in the event that they believe their safety is, or could be, threatened. It is important to note that at the first stage of a work refusal, it is not necessary that an employee’s belief that the work in question is unsafe be correct or reasonable. Therefore, even if the actual risk of contracting swine flu is quite low, where an employee has a genuine belief that he or she is at risk, the work refusal should be taken seriously and dealt with in accordance with the procedures specified in the OHSA. An employee is entitled to be paid normal wages while the circumstances surrounding the work refusal are being investigated. Failure to comply with the OHSA may result in fines.
The right to refuse work is more limited for certain work groups where the danger in question is a normal part of the job and where a work refusal would endanger the life, health or safety of another person. In light of the recent swine flu outbreak, this limitation is particularly applicable to employees in the healthcare sector.
If an employee contracts swine flu through exposure to the virus in the workplace, and the employer is notified of this occurrence, it may constitute an “occupational illness” whereby the employer will be required to report the illness to a Ministry of Labour Inspector, the Joint Health and Safety Committee, and the union.
Similar obligations apply to employers covered by the Canada Labour Code.
Employers should assess the nature of the work performed in their organization to identify specific risks associated with the spread of swine flu. Consider taking a joint approach to your prevention and containment strategy through consultation and cooperation with union representatives.
Employees who are unable to work because of illness caused by the swine flu may be eligible to receive benefits pursuant to a company’s sick leave policy. The provision of sick leave benefits to an employee with swine flu should not depart from the norm.
Where an employee is concerned that they may have contracted swine flu or have recently travelled to Mexico, consider arrangements to have them work from home as an alternative to sick leave benefits.
Employers should also consider privacy requirements when handling the personal information of an employee with the swine flu. An employee’s personal information may only be disclosed with the knowledge and consent of the employee. The improper disclosure of sensitive personal information may result in the filing of a privacy complaint.
The Duty to Accommodate
Discrimination in the workplace is barred by provincial and federal human rights legislation. Employers should therefore be careful not to subject an employee who is infected with the swine flu, or who is perceived to be at risk of contracting swine flu, to differential treatment beyond what is required to maintain a safe workplace. Further, in the event that an employee has or is suspected of having swine flu, employers may have a positive duty to accommodate him or her.
The Employment Standards Act
Pursuant to the Employment Standards Act (ESA), where companies regularly employ 50 or more employees, those employees will be entitled to take up to 10 unpaid “personal emergency leave” days. This leave may be used to care for oneself or to care for a child who must stay home due to the closure of a school or daycare facility.
The Emergency Management and Civil Protection Act
In the event that an emergency is declared under the Emergency Management and Civil Protection Act, employees may be entitled to a leave of absence. In order to qualify for an emergency leave of absence, employees must be unable to work because either: (1) they are subject to an order under the Emergency Management and Civil Protection Act, (2) they are subject to an order under the Health Protection and Promotion Act, or (3) they are needed to provide care or assistance to a specified individual.
Tips to Reduce the Risk of Swine Flu in Your Workplace
The key to the prevention or containment of the virus in the workplace is communication. It is advisable that a single point of contact be established in your organization to ensure questions, concerns and status updates are appropriately managed.
The Public Health Agency of Canada recommends taking a proactive approach to avoiding the spread of swine flu. Some tips from their website include advising employees of the following:
Please follow the following links for more information on swine flu: