VIRUS AT WORK
CAN AN EMPLOYER FORCE YOU TO STAY HOME? LEVITT, FP10 WEALTH WIPEOUT FOR WORLD’S RICHEST.
If you come back from Italy, Hong Kong, or another country substantially affected by coronavirus, can your employer force you to stay home? If they do, must they pay you? What if you become ill and are off for an extended period — can you lose your job? Can you be forced to work in an environment where you suspect others might be infected? And can your employer force you to cancel your travel plans?
These questions, and a myriad of uninformed answers, have become the primary current water-cooler chatter.
Your employer has every right to force you to absent yourself from the workplace for, at least, the requisite 14- day incubation period.
The more difficult question is whether it has to pay you. It does. There is no legal right in Canada, absent substantial misconduct, for an employer to require an unpaid suspension, and such a suspension would in some circumstances be a constructive dismissal.
In a case of legitimate business concerns, such as potential infection by the coronavirus because an employee has returned from an infected area or been near infected people, it would not be a constructive dismissal. But your employer still has no right to suspend without pay.
An employer can’t force you to cancel your travel plans, but they can enforce quarantine and if the travel is voluntary, refuse to pay you for the period off work.
Ironically, an employee’s situation could actually be much worse if they are ill from the virus. In that circumstance, the corporate disability benefit policies would step in. But some employers do not pay sick leave or have shortterm disability plans and that is entirely legal.
Therefore, while an employer would have to pay you if it made you stay home because it feared infection, it would not have to pay you if it forced you to stay home because you were actually sick from the disease and there was no disability benefit plan.
If you are fired as a result of this absence, your rights are stronger. Disability or even the employer’s apprehension of disability has human rights protection and, if an employer fired you because you took the requisite time off to ensure that your coworkers were not infected, the human rights tribunal would provide you with reinstatement, back pay, and additional ( non- taxable) damages for violation of your human rights.
What if you are afraid of coming into work because you believe some employees might be infected? This is covered by the occupational health and safety acts in each province.
Many current employers are permitting or even requiring employees to work from home in those circumstances. But if you cannot work it out with your employer, you still have the right to refuse to attend the workplace until a government health and safety inspector makes a determination as to whether there is actually a realistic danger. If they decide that there is not, you must attend.
What if you are a doctor or a frontline health-care worker? Can you refuse to deal with potentially infected patients? In my view, as long as you are provided with sufficient protective equipment you cannot refuse since dealing with the ill and infected, and accepting the concomitant risks of that, is inherently part of the job.
My advice to employers is to be prophylactic in this situation. Pay for forced quarantines of anyone coming from an infected area or who has had contact with an infected person. A company should ensure that customers and members of the public are not allowed into its premises or to have contact with its employees if they similarly might realistically be infected.
Relevant notices should be posted asking people in those circumstances not to attend the premises. If, as an employer, you are aware of a risk and fail to deal with it, and an employee becomes infected, they have a legitimate lawsuit against you for negligence in the same way that someone suffering HIV, who has unprotected sex without advising their partner, can be sued.
There is the possibility of significant lawsuits against employers who do not sufficiently protect their employees from the coronavirus. In addition to preventing entry for those who could be infected, reminders to wash employees’ hands, freely available tissues, hand sanitizers throughout the workplace, constant cleaning of workstations and the premises, arranging virtual client meetings and reminding the ill to stay home are necessary new steps.
Employers should also ask workers to stay away from anyone they know who has been to one of the infected countries for at least 14 days following the return.
Posting all of this in your workplace or sending letters to your employees will prevent a lawsuit as well as protect your employees’ health.
Your employer has every right to force you to absent yourself from the workplace for, at least, the requisite 14-day incubation period. The more difficult question is whether it has to pay you. It does. — Howard Levitt