Written by Shibil Siddiqi
Worker Rights During the COVID-19 Pandemic
The Novel Corona Virus Disease 2019 or COVD-19 has left many workers in a bind. On the one hand, workers need to be able to work to support themselves and their families. On the other, for reasons of public and personal health, workers may wish to not report to work at this time. This post covers some worker rights and protections in relation to reporting or not reporting to work as guaranteed by the Employment Standards Act (ESA) and certain other issues arising under human rights and occupational health and safety and workers’ compensation legislation in Ontario.
Expanded Leaves Under the Employment Standards Act
On March 17, 2020, the Government of Ontario declared a state of emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act, closing down schools, day cares, libraries, bars, restaurants (except takeout) and many other public venues. This declaration also triggered s. 50.1 of the Employment Standards Act allowing for unpaid and job-protected Emergency Leaves for employees unable to perform their duties due to a declaration of emergency; subject to an order for quarantine or self-isolation; or to provide care or assistance to a family member or to a relative who is dependent upon the employee’s care.
These narrow protections were significantly expanded on March 19 with the passage in Legislature of the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended s. 50.1 of the ESA to include a number of provisions dealing specifically with designated “infectious diseases” including COVID-19.
When an infectious disease has been designated, under the new s. 50.1(1.1)(b) an employee may be entitled to an unpaid leave if they wish to “self-isolate”, as long as the employee is acting on information or directions provided by a public health authority. In other words, this section may provide broad protections to employees who may wish to not come to work and may want to take an unpaid job-protected leave to self-isolate. This amendment to the ESA may recognize that in times of dangerous pandemics, any exposure to the public in or en route to the workplace may constitute a danger to the employee’s (and to the public’s) health and safety.
Employees are also now entitled to an unpaid leave to care for a sick relative. A broad list of enumerated relatives is found under s. 50.1(8). Further, employees are also entitled to an unpaid leave where school and/or daycare closures have imposed additional childcare obligations on them. With schools in Ontario now closed indefinitely, most parents will be dealing with additional childcare obligations.
Employers are entitled to ask employees to provide reasonable evidence under the circumstances that the employee is entitled to the leave. However, in the case of infectious diseases the employer cannot ask the employee to produce a doctor’s note (see s. 50.1(4.1)). This provision again protects the health and safety of workers who may risk exposure by attending at hospitals to obtain sick notes, and it protects scarce health resources when they are sorely needed
While these leaves are unpaid, employees are entitled to continued benefits, health plans, pension contributions provided by the employer. An employer is not allowed to reprise against any employee taking an Emergency Leave or infectious disease leave.
It is important to note that the protections to take Emergency Leaves provided under ESA s. 50.1 only apply for the duration of a declared state of emergency. Emergency Leaves generally end when the declared state of emergency is lifted. However, leaves under the new amendments for infectious diseases last for as long as COVID-19 continues to be designated as an infectious disease. There is no stated maximum duration while the designation remains in place.
Outside of a government-ordered closure of non-essential business, and subject to leaves under ESA s. 50.1, generally employers are still able to lawfully require otherwise healthy workers to report to work. There may be an exception to this is you are immunocompromised or medically vulnerable, or if you are responsible as a caregiver for someone who is. There may also be an exception based on your family status if you have childcare or other family care obligations.
What happens if an otherwise healthy worker contracts COVID-19?
First and foremost, you will need to time to self-isolate, recover and get healthy again. For as long as COVID-19 is designated an infectious disease, workers are entitled to a job-protected leave under the amendments to ESA s. 50.1.
With respect to human rights protections for a job-protected leave, traditionally the Human Rights Tribunal of Ontario has not recognized short-term or transitory illnesses (like a cold or flu) as a “disability” under the Code. This leaves workers vulnerable to a finding that contracting COVID-19 might not trigger an employer’s duty to accommodate.
However, on March 13, 2020, the Ontario Human Rights Commission adopted a significant policy position 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.” While these policy positions are not binding on the HRTO, they have great persuasive value. It may be possible to argue that, given the deep public health, social and economic impact of COVID-19, those who contract the illness should be afforded protection akin to workers living with a disability. This would mean that employees should not be sanctioned for absenteeism if health officials have quarantined them or advised them to self-isolate.
In this light, workers who contract COVID-19 can likely take job-protected leaves under both the ESA and the Code.
Getting Paid While on Leave
Whether you are paid for voluntary or forced leaves from work depends on individual employment contracts and employer policies. If paid sick leaves are provided for by your employer, you should remain entitled to them.
The ESA itself no longer requires employers to provide any paid sick days. However, you may be eligible for Employment Insurance Sickness Benefits. As of April, 2020, workers not eligible for EI benefits will have access to Emergency Support and Emergency Care Benefits through the Canada Revenue Agency.
Finally, if you contract COVID-19 at the workplace, it may be possible for you to claim compensation through the Workplace Safety and Insurance Board (WSIB). While it is difficult to predict how receptive the WSIB will be to such claims, it is generally advisable to apply for WSIB benefits as soon as possible upon becoming ill in the workplace.
Workers have both rights and responsibilities under the Occupational Health and Safety Act. Included among the latter is the responsibility to report any known health or safety hazards to your employer. In the current circumstances, this likely includes a duty to inform your employer if you have recently travelled outside of the country and/or if you believe you may have been exposed to the virus. You should do so by calling, texting or emailing your manager and seeking their direction; do not attend at your workplace, even if you have a scheduled shift.
If you work with higher risk populations (for example, seniors in care homes), your employer may require you to wear a face mask, gloves, or other personal protective equipment (PPE). It is your employer’s responsibility to ensure you know how to properly use (and dispose of) any PPE, but you have a duty to make use of the equipment that is provided.
While job-protected leaves have become a public health necessity, the fact that these leaves are unpaid is not sustainable. Time will tell whether a government bailout package, including the Emergency Support and Emergency Care Benefits the Federal Government will announce in April, are sufficient to address the income needs of workers for the course of the COVID-19 pandemic.
COVID-19 is not only a national but a global public health emergency. Its cost should not be disproportionately borne by marginalized workers. After all, even as we practice social-distancing and self-isolation, the immutable fact is that we’re all in this together.
Citation: Shibil Siddiqi, “Worker Rights During the COVID-19 Pandemic” Canadian Law of Work Forum (March 25 2020): https://lawofwork.ca/worker-rights-during-the-covid-19-pandemic/