Employment law during mass hysteria
Some readers might remember SARS of 2002, or H1N1, and various other outbreaks over the years. It is reminiscent of the Spanish flu of 1918, during which all events with more than 10 people were cancelled. Now it is COVID-19.
States of emergency are being declared. Sidewalks, parkades and grocery shelves are barren. Schools in B.C., Saskatchewan and Alberta are suspending classroom instruction until further notice.
B.C. courthouses are even closing and regular court operations are being suspended.
As of the time of writing, seven people who had the virus have reportedly died in B.C., six of whom were connected to a particular North Vancouver care home.
Whether the hysteria matches the reality is a question that could legitimately be asked. While it may be reasonable to take certain steps to prevent further spread of the virus, many considerations are involved.
It is useful during this time to remember a few basic employment law concepts:
• A failure to show up at work by an employee without a legitimate explanation can give rise to questions about whether the employee has abandoned his or her position;
• An employer has obligations under occupational health and safety (OH&S) regulations to maintain a safe and healthy workplace;
• An employee has the right to refuse work which is unsafe, defined as work which “that person has reasonable cause to believe… would create an undue hazard to the health and safety of any person;”
• Upon work being refused on the basis that it is considered unsafe, the employee must immediately report the circumstances of the unsafe condition to his or her supervisor or employer, and the employer must conduct an adequate investigation and remedy any unsafe conditions or advise the employee that the report was not valid;
• Employers have obligations to take sufficient care not to jeopardize the safety of others, such as customers;
• Depending on the circumstances, unilaterally requiring an employee to be away from work without pay for an quarantine period may well be a dismissal or a constructive dismissal;
• Subject to the terms of a valid employment contract, an employee who is dismissed without just cause is entitled to receive reasonable notice of his or her dismissal or pay in lieu thereof, often referred to as severance pay;
• The availability of employment insurance in itself does not amend an employment agreement.
Whether or not you believe the mass hysteria is well founded, it may be reasonable for certain employers to ask certain employees to self-isolate or quarantine for a short time.
Encouraging employees to self isolate or quarantine for a period of time by working from home is not in itself constructive dismissal.
Depending on the circumstances, an employee who wishes to self-isolate and work from home for a short time may be making a reasonable request.
Employees may be entitled to take a brief unpaid family responsibility leave in accordance with the Employment Standards Act.
Employers may agree to other approved unpaid leaves, and ought to be fair among employees.
Employers are required to accommodate requests from parents who are without assistance with childcare for children whose schools or daycares are closed. Accommodation is required up to the point of undue hardship.
Whether an indefinite and almost complete shut-down of society is reasonable remains to be seen.
We can all hope that these measures are effective to stop the spread of this virus so that we can all resume our normal routines.
To read more about employment law considerations relating to conavirus, click on “publications” at inspirelaw.ca and look for the website version of this article, which contains further details.