March 9, 2020

Author: Alex Norris

Alberta has confirmed seven cases of the COVID-19 virus, or novel coronavirus, as of the posting of this article. These cases, along with daily media reports from across the globe, seem to be prompting heightened fear of the virus. Alberta Health Services is posting up to date information and news releases here. Although there is no need for employers to panic, it is important for employers to be aware of their legal obligations to employees in relation to COVID-19.

As with most workplace employment issues, managing COVID-19 in the workplace requires a balancing of multiple legal obligations and interests.

Occupational Health and Safety

Under Alberta’s Occupational Health and Safety Act, employers have an obligation to maintain a safe and healthy workplace for employees and must take reasonable precautions to protect employees. Employees have the right to refuse work if a condition in their workplace is likely to endanger their health and safety. This means an employee diagnosed with COVID-19, or potentially exposed to COVID-19, should remain out of the workplace to protect the health and safety of other employees.

Human Rights and Privacy

While employers should encourage employees to remain home if they are unwell, there are also human rights and privacy issues to manage. The Alberta Human Rights Act legislation prohibits discrimination on the basis of disability, which can include diseases. An employer cannot subject an employee to adverse treatment because of illness or suspected illness. An employer also cannot require an employee who is ill to disclose the nature of their illness. What an employer can do, however, is request that an employee obtain medical information confirming they are or are not fit to work. In any event, employers should ensure employees feel supported and respected regardless of the reason for their illness.

To Pay or Not to Pay

Unless there is a company policy providing otherwise, an employer is generally not required to pay an employee who is absent from work. That said, an employer can elect to continue providing salary or other benefits to employees who are required or wish to take a leave of absence. There is no “one size fits all” answer.  

For example, an employee who suspects they may have been exposed to COVID-19 may need to undergo a self-quarantine. If the employer does not provide paid leave or permit remote work, the employee may be placed in a difficult position. What if they cannot afford to take an unpaid leave? If they conceal their illness and attend for work so they can be paid, they could put other employees, customers, and the general public at risk. Our recommendation to employers is to maintain a dialogue with employees in the coming weeks and months. Seek to understand employee concerns about COVID-19 and advise them of their options if they need or wish to remain way from the workplace. Consider the following:

• Is there a sick leave policy providing paid days off for illnesses?
• Is there a remote work policy permitting employees to work from home?
• Is there a short-term disability (STD) program providing paid time off? What are the eligibility requirements? Are there different requirements for COVID-19? Depending on the STD provider, quarantine resulting from potential exposure may be a permitted ground for submission of an application.
• Is the employee eligible for Employment Insurance (EI) sickness benefits? More information is found here.

Concluding Thoughts

Even if COVID-19 does not pose an immediate threat to your workplace, employers can still implement measures to help prevent and control the spread of COVID-19 and other illnesses. Remind employees to take preventative measures, such as washing their hands frequently with soap and water for at least 20 seconds (the duration of “Happy Birthday” sung twice, or other creative alternatives such as those set out here). Consider alternative measures to prevent the spread of illnesses such as allowing employees to work from home; holding conference calls instead of meetings; and allowing employees to work flexible hours in order to avoid public transportation in peak times.

If you would like more information about an employer’s legal obligations or assistance in managing COVID-19 in the workplace, please contact a member of the Carbert Waite LLP Employment Law Group.

Alex Norris is a Calgary-based employment lawyer with Carbert Waite LLP