Employee Safety & COVID-19

Written on behalf of Peter McSherry
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We live in turbulent times. The world has been rocked by this unforeseen calamity known as the COVID-19 pandemic. We are concerned about our health, that of our friends and parents and now add to that rather unattractive set, a very serious risk of our economic livelihood and our financial stability being under siege. Employment law issues have taken a front and centre role in our daily lives. This is the very moment to seek shelter and advice from your employment counsel.

Some Good News Regarding Job Protection & EI Benefits

The silver lining in the clouds of gloom is that the Ontario government has passed a new law that provides job security for those suffering from COVID-19, those in quarantine or needing to help relatives in medical need or attend to children who are now absent from school due to school closings. It also protects workers who have been ordered by their boss not to report to work due to COVID-19 issues.

The law will allow for reinstatement and back pay should any company terminate the employment of any worker due to the above conditions. It is retroactive to January 25, 2020, which is very unusual.

Employment Insurance Canada has also announced that it will waive the present one week waiting period for COVID-related cases. EI will also be allowed for those persons voluntarily entering a self-quarantine period. The need for a medical certificate will be waived. The cap on EI is $573 per week, based on 60% of insurable earnings to a cap of $54,200 for 2020. 600 hours of pre-application insured income is required as a prerequisite. Self-employed workers may be eligible if they opted in at least one year prior to the application. The period of payment is set to extend for 15 weeks. Employers may top up the EI payments, but are not legally obligated to do so.

The news on EI is changing as we speak. This section will be updated as events continue to unfold.

Workplace Safety & Insurance Act

The benefits offered by this statue may be available to a worker infected and unable to work because of COVID-19. The employee must show a workplace connection to the transmission of the disease to them, but there is no doubt that if there is evidence of a workplace connection, then benefits should be paid. The difficulty, of course, is how to prove that the infection came from an event in the workplace.

There is no precedent on how this might be proven. However, if a given workplace is a focal point of numerous COVID-19 infections, it may well be a fair deduction to make that transmission was employment-related. Workers’ compensation benefits were similarly made available for the SARS epidemic.

Right to Refuse Unsafe Work

There is a provision in the Occupational Health & Safety Act that allows a worker to refuse to work where they have reason to believe that the work would be a danger to themself or a co-worker. Let’s take a closer look at this statute and see if it maybe relevant in the context of COVID-19.

Section 43(3) of the Act deals with this situation. This would appear to deal most commonly with the mechanical aspects of one’s working conditions such as machinery and the like, however it could also be extended to other threats to one’s safety. The section reads as follows:

A worker may refuse to work or do particular work where he or she has reason to believe that,

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; [emphasis added]

(b.1) workplace violence is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

The wording does make reference to “the physical condition of the workplace”. While it is unlikely this clause was included with the intent of application to an epidemic, it could be argued that the wording here could describe a workplace where there is a high risk of infection. The best idea would be for the Ontario Government to amend the statute to cover this situation specifically and not rely upon a creative argument that may well fail. However, in light of the threat of the current situation, the application of this clause to the COVID-19 epidemic is likely to be tested in Ontario courts.

Be careful, however, what you wish for. If your situation is covered by this statute, you will be denied any other claims such as civil actions or Employment Standards Act remedies. There are pros and cons of workers’ compensation cases. One disadvantage is that the reinstatement process is weak. It is not reinstatement in the true sense of the word.

There are other reasons beyond this to report to your employer any safety concerns relating to COVID-19. This should be encouraged as this leads to job protection. More on this next week.

Seek the Advice of a Trusted Employment Lawyer

It is a dramatic understatement to state we are in a chaotic moment. Law firms are one service which remain open for obvious reasons. Our firm continues to operate at full capacity, with modifications made to protect the health and safety of our valued staff and clients.

Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.