What are my rights?

IWorkplace Law

cannot recall my weekly employment law show on Newstalk 1010 ever being as busy as this past Sunday’s. Not only did the phone lines ring non-stop but I had 45 text questions rather than the usual five to ten. The vast majority related to the unprecedented situation we find ourselves in. The level of fear and hysteria supersedes the objective statistics.

The majority of the deaths in China — the most-affected country — have been in the oldest age group, with a 14.8 per cent fatality rate for those aged 80 years and over; those under the age of 10 to 39 had a fatality rate of 0.2 per cent. In short, it suggests the real risk is to the elderly and those with already compromised health. The major substantive risk for most of us is that we might, directly or indirectly, develop the virus and infect the relatively few who are actually endangered.

What does all of this translate into in the workplace?

The rules are simple. You cannot permit employees who are endangered by symptoms of the virus, either by traveling to countries such as Italy, China, South Korea and Iran or by contacting anyone infected, to enter your workplace until after two weeks of quarantine, during which you can require them, if feasible, to work from home.

Public health authorities are recommending extending this to anyone who has travelled outside of the country, likely because of the risks from infection at the airports or on the planes themselves.

If an employer does not prohibit such a person attending the workplace, it can be sued for negligence by any employee who attracts the virus and, for that matter, anyone they infect in turn.

If you prevent their attendance, as you should, you must pay their salary for those two weeks or until they obtain a test clearing them of the virus. If an employee becomes ill, they are entitled to whatever disability benefits the employer provides. However, all employers do not offer sick pay and there is no legal requirement to do so.

Whether in quarantine or ill, employees cannot be dismissed as that would be a breach of the human rights code in each province.

Many of my employer clients are being asked by their employees if they can work from home as they are concerned about attending the workplace. There is no legal obligation on employers to permit this and many jobs are not compatible with remote work.

Below is a representative sample of the questions received by phone and text on my show:

Q: One of my employees is exhibiting symptoms. Can I require them to be tested?

A: You must have them absent themselves from the workplace until they are either fully recovered or receive a test clearing them. Yes, you can ask that they be tested or see their doctor in those circumstances.

Q: Do I have the right to ask my employer if a colleague has tested positive for coronavirus. If they do, what are my rights?

A: You have the right to ask that employees, customers and members of the public who tested positive, came from a high risk area or had contact with someone infected, not be permitted to attend the workplace.

If they are permitted to attend, you have the right to absent yourself. If an employer does not act proactively to ensure that its employees are protected from other employees, customers or members of the public, they can be sued for negligence by those employees and anyone else who those employees, in turn, infect with the virus.

Q: I am being instructed to work from home but told that I cannot look after my children while working, but must devote myself to the job. The problem is that my children’s daycare has just been suspended.

A: The employer has a right generally to ask that you work, uninterrupted by child rearing. However, it has a duty to accommodate your childcare needs. Therefore, for all employees who have had their daycare suspended, they must look for alternate daycare and, if they cannot find it, advise their employers which can also attempt to assist in locating childcare arrangements. If that cannot be done, the employer by law is required to accommodate your working from home while looking after your child if the nature of the job permits working from home. If not, they must give you the time off to be with your children but not with pay.

Q: I am a unionized flight attendant and will be laid off for some period of time. Am I entitled to severance?

A: Since you are in a union, you are not entitled to pay if you are laid off. If you were non-union, you would be able to sue for constructive dismissal or, at least, salary for the period of layoff.

Q: We are a private school which stopped classes as per guidance from public health. What is our obligation to our employees?

A: You have to pay them for the period that you are shut down, assuming they are not unionized. If you do not pay them, it will be a constructive dismissal.

Q: At what point are businesses entitled to relief? Do they have to pay employees if they shut down or ask them to stay off work? It seems everyone assumes businesses have an endless supply of money.

A: That is one difficulty with the current situation.

If there is a shut down, even for a temporary period, businesses may end up going out of business and its employees will all be wrongfully dismissed by law.

Q: I have a small business and would like to close for two weeks because of the virus. Can my employees apply for and collect employment insurance or must I pay them?

A: You must pay them whether or not they collect EI.

Q: An employee advised me they have already booked an upcoming trip abroad. What rights do I have?

A: You can ask them not to attend and warn them that, if they do, you will have to quarantine them for two weeks and they will not be paid since you gave them this option in advance. Generally though, if you ask employees to quarantine themselves, you must pay them for that period.