“I didn't know people died from the flu.”
Donald J. Trump
Just when I thought there was nothing new in the world of employment law, along came something called the coronavirus (or COVID-19). Why is that of any importance to employers and employees (and employment lawyers)?
It’s important because, for many of us, our main venue of socializing with other humans is the workplace. That’s where we breathe, cough, and sneeze all day long. It’s where we touch doorknobs and security keypads and utensils and coffee pots and computer keyboards and refrigerator handles and faucets and… well, you get the picture.
As a major gathering point for us frail human beings, the workplace may be where we are most likely to catch something like a cold, the flu, and now the coronavirus. So, what are employers doing to minimize the impact upon its employees and operations, generally?
Getting The Word Out
First, of course, most employers are communicating about the risks of infection, the value of adhering to good sanitary practices such as diligent hand washing, encouraging them to stay home at the first signs of an illness, etc. That’s just good, common sense.
Employers are also installing things such as dispensers for hand sanitizer and other similar sorts of disinfectant products. They are also stepping up the frequency and nature of their cleaning regimen so that the premises are as virus-free as possible. They are calling off business travel, conferences, and larger-scale in-person meetings.
These are all useful steps and, for many of us, may prove to be sufficient. In some settings, however (care homes for the elderly, day-care centers for young children, hospitals, etc.) the steps employers will take may well greatly exceed what those of us in the average office will experience.
Dealing With International Travel
A question I’ve been asked, several times, involves dealing with employees who are travelling internationally. A lot of international travel is presently being cancelled, but it’s that time of year when people are heading south or over to Europe or Asia, and not everyone is staying home (yet).
The question is, can the employer prohibit an employee from travelling at this time and, if not, can it take measures upon his/her return? The answer to the first part of the question is “probably not”.
Unless the travel is work-related, in which case the employer usually has total discretion to cancel a trip, an employer cannot regulate what the employee does with his/her free time. Telling staff they can’t take their kids to Hawaii during March break is pretty much a waste of time for the employer.
After Employees Return From Travel
What about the work situation upon his/her return to British Columbia? Can an employer isolate an employee by ordering him/her to work from home for (say) 14 days upon returning home?
The answer to that question involves legal issues relating to temporary layoff and constructive dismissal and discrimination and workplace safety (and possibly a whole range of other legal issues we haven’t even considered, yet).
I can’t say there’s no risk that a temporary alteration to the employee’s normal day-to-day conditions of work would be viewed by an adjudicator as a constructive dismissal or discrimination. But, my view is that there is a low risk of that outcome. Especially if the employee is continuing to work at home and, consequently, being paid his/her normal wages during that period. I doubt that any tribunal or court would consider being paid to work from home for a couple of weeks, for serious public safety reasons, amounts to a constructive dismissal or discrimination.
Employers are, after all, subject to the basic workers compensation requirement that they must provide a safe and healthy workplace for all their employees. If the individual has travelled to a risky part of the globe and there is a legitimate concern he/she may have been exposed to the virus, the employer is obligated to take steps to minimize the resulting risk to others.
If the employee can’t work from home, or otherwise isn’t going to be paid for that period, the question gets a little harder to answer. Can employers ask employees to make use of accrued vacation time and sick days and banked overtime, etc. to carry him/her through that period? Certainly, the employer can ask. The employee may not, however, be obliged to agree.
It’s definitely preferable if the employer can avoid the last resort of forcing employees to stay home for a couple of weeks without pay. What are some ways to avoid that? Employers have a range of options available to them.
In all likelihood, employers are going to need to be creative over the coming weeks and months. Circumstances will change as this coronavirus situation evolves and new and different measures may be required. For now, a few straightforward steps to keep at-risk employees at home for an extra period of time after international travel seems prudent to me.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.