The Novel Coronavirus: Preparing Employers to Respond

Labour, Employment and Human Rights Bulletin

The World Health Organization (WHO) has declared the 2019 Novel Coronavirus outbreak a public health emergency of international concern. There are now over 7,500 confirmed cases of the coronavirus reported globally.[i] There are three confirmed cases in Canada with many more possible cases being investigated.[ii]

Coronavirus refers to a family of viruses that can infect both humans and animals.[iii] A novel coronavirus is a new strain that has not previously been identified in humans.[iv] According to the latest information from Toronto Public Health and Health Canada, coronavirus symptoms range from mild to moderate and include fever, runny nose, headache, cough, sore throat, and difficulty breathing.[v]

The Public Health Agency of Canada currently assess the public health risk of coronavirus as low for Canada and for Canadian travellers.[vi] However, employers are understandably concerned about their employees and business continuity. This article provides some general guidance on the legal issues that employers may encounter. This is general guidance only and employers should be prepared to obtain specific legal advice to deal with specific workplace issues as matters unfold.

This general guidance will apply to most workplaces.  Workplaces that are health care facilities treating the ill will require a more immediate and tailored response to issues. Employers with unionized workforces will also need to be mindful of specific obligations in their collective agreements, including any obligation to develop a response in consultation with union representatives. 

Health and Safety Precautions

Health and safety legislation imposes a general duty on employers to take reasonable precautions to protect employees. This requires employers to take active steps to ensure employees are safe from workplace hazards. The exact steps that an employer must take to protect employees from the coronavirus depends on the likelihood of employees being exposed to and contracting the virus at work. During the Severe Acute Respiratory Syndrome (SARS) outbreak in Toronto in 2003, the Ministry of Labour and public health authorities recommended that employers: 

• Ensure that employees with flu-like symptoms do not come to work;
• Promote good hygiene practices (like handwashing) and ensure the work environment is clean;
• Ensure that engineering controls (like ventilation) are properly maintained; and,
• Distribute and train employees in the use of personal protective equipment, as appropriate.

This is also good preliminary advice for the coronavirus. Employers should monitor bulletins and news releases from health authorities for the latest updates. Their advice will help employers fulfill their duty to take reasonable precautions to protect employees.

Employer also have a duty under health and safety legislation to provide information to employees.  This duty could require employers to tell employees about the risk of contracting the virus at work, and about the measures in place to control or eliminate that risk.  Employees may ask about whether they can wear masks or other personal protective equipment at work. Based on current information, the use of masks, respirators, and glasses is not recommended for those outside of health care employees in close proximity to confirmed cases. Instead, the WHO is recommending standard precautions for the general public to reduce exposure to and transmission of the virus, including:

• Frequently clean hands by using alcohol-based hand rub or soap and water;
• When coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash hands;
• Avoid close contact with anyone who has fever and cough;
• If you have fever, cough and difficulty breathing seek medical care early and share previous travel history with the health care provider;
• When visiting live markets in areas currently experiencing cases of novel coronavirus, avoid direct unprotected contact with live animals and surfaces in contact with animals;
• The consumption of raw or undercooked animal products should be avoided. Raw meat, milk or animal organs should be handled with care, to avoid cross-contamination with uncooked foods, as per good food safety practices.

Enhanced precautions will be appropriate for employees in health care working in close proximity to confirmed cases of the coronavirus.

Work Refusals 

The WHO emergency declaration and the relatively quick spread of the virus has attracted significant media attention and speculation. This may result in employees refusing to perform work if they believe they may be exposed to the virus.

Employers should be familiar with the employees' right to refuse unsafe work and how these situations must be handled.  Generally, employees have the right to refuse work where they have reason to believe their health and safety is at risk.  The right to refuse is more limited for those working in certain jobs (like healthcare) where the unsafe condition is a normal part of work, or where the refusal would endanger the life, health and safety of another. 

If an employee refuses to work, the employer must follow the specific resolution process outlined in health and safety legislation. Employers are generally prohibited from disciplining or threatening employees for exercising their right to refuse work. Employers who are considering disciplining an employee for a bad faith or improper work refusal should seek specific legal advice.

Time Off for Illness or Care Obligations

Employees who are ill or need to care for ill family members may be entitled to paid time off under employer policies or contracts, or unpaid time under employment standards legislation for illness or care obligations.

In Ontario, employees are entitled to take sick leave, family responsibility leave, family caregiver leave, family medical leave, and critical illness leave under employment standards legislation. Depending on the circumstances, the same event can entitle an employee to multiple leaves because each leave is a separate entitlement. These leaves can range significantly in duration. Employers should review the requirements for the different leave entitlements.

Instead of requesting a doctor's note, depending on operational needs and the leave being requested, employers may wish to simply encourage employees who are potentially infected with the coronavirus to stay at home and contact emergency health services if and as appropriate. Requiring a doctor's note in every case may actually do more harm because employees could potentially infect others at their doctor's office.

Accommodation and Discrimination

Employees are protected under human rights legislation from discrimination based on defined grounds including disability, family status, national origin, and racial and ethnic background. The category of disability is interpreted broadly and may, in certain circumstances, include the coronavirus. This is particularly true since the Ontario Human Rights Commission clarified during the 2003 outbreak that SARS should be treated as a "disability" under the Ontario Human Rights Code.  This protection applies whether based on perceived or actual disability.

Employees who are required to take time off work to care for family members may also be protected from discrimination and entitled to accommodation based on family status. In any case where an employee wishes to take a leave of absence to care for themselves or a family member due to the Coronavirus, employers should carefully assess the specific circumstances and ensure they fulfill their procedural and substantive duty to accommodate to the point of undue hardship. This may require extended leaves of absence over and above employment standards entitlements. 

Employees are also protected from discrimination based on having a racial, ethnic, or national background that is believed to be associated with the coronavirus. For example, an employee of Asian descent, or an employee who is associated with someone of Asian descent, should not be treated differently from other employees because of their ethnic or national origin. Employers must, of course, be vigilant to control the risk of coronavirus at work, but the employer should take care not to be involved in speculation, alarmism, or fearmongering generally, and particularly about the origins of the virus.

Workers' Compensation

Under the workers' compensation system, employees have a statutory entitlement to compensation for personal injury or illness that arises out of and in the course of their employment, including wage-loss benefits and medical coverage. Employees who become infected and who work in a healthcare setting where they interact with patients infected with the Coronavirus, or who are required to travel to areas where the Coronavirus is known to be prevalent, may be able to claim their infection arose in the course of their employment. Employers in these situations should ensure all appropriate risk-mitigation efforts are implemented based on the latest guidance from public health authorities, and to impose travel restrictions accordingly.  

Emergency Preparedness 

Although there will always be unknown and uncontrollable elements to the spread of an infectious illness, employers can take practical measures now to prepare themselves for these contingencies. Employer should.

• Ensure managers are aware of their duties and obligations under workplace legislation, including in the areas of employment standards, human rights, and occupational health and safety as they relate to the coronavirus.
• Monitor the latest updates from public health authorities, including municipal, provincial, and federal public health agencies. These agencies will provide objective information about the coronavirus on an ongoing basis, and employers should refer employees to these as their main source of information.
• Review and update their policy or policies addressing communicable illnesses, and to clarify the protocols that apply to the coronavirus. Generally, these policies should address what illnesses are covered, protocols for disclosure and for staying at home, the application of paid and unpaid leave entitlements to illness and quarantine-related situations, guidelines for work-related travel, and available workplace resources.
• Develop a broader policy to address how business operations will continue in the event of a more serious outbreak. This can be prepared as a general policy for defined emergency events, including an outbreak of infectious illness such as the Coronavirus, and should outline how core business functions and channels for decision-making will be maintained in such an event.
• Depending on the nature, size, and sophistication of business operations, emergency preparedness plans may include succession plans for defined roles in the event of employee absences, communication protocols for internal and external parties, general health and safety practices, and operational measures for dealing with facilities that are directly affected.

Click here to read the full article.....

Article published by: Fasken on Jan 30, 2020

Article written by: Shane Todd and Justin P'ng

Article spotted by: Kathryn Benson and Posted by: Louise Burden

THE DEBATE REGARDING AN EMPLOYER’S DUTY TO ACCOMMODATE ON THE BASIS OF FAMILY STATUS CONTINUES…

Courts and Human Rights Tribunals have long debated the extent of an employer’s legal obligations when it comes to accommodating employees in their family status responsibilities. Unfortunately, in Ontario, the test for family status accommodation continues to remain unsettled with the latest decision, Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10.

The Facts

In this Ontario human rights case, Simpson worked for the employer as a personal support worker for approximately four years. She was a mother of two children. Her oldest child, who was five years old, was autistic and required the attendance of a caregiver to meet the school bus at the end of each school day. Simpson was the only caregiver in her family who was able to pick up her son from the bus. The employer was always aware of Simpson’s son and his special needs circumstances.

In March, 2017, the employer proposed to amend Simpson’s work hours but Simpson was unable to accept the changes, as the scheduling changes would conflict with her childcare obligations. Initially, the employer showed willingness to accommodate Simpson’s schedule by offering her midnight shifts. However, the employer retracted the offer in April 2017, when Simpson called in sick to work without giving enough notice. Upon receiving the notice of absence from Simpson, the employer issued a written warning, which alleged that Simpson neglected her employment responsibilities by failing to source a substitute colleague to cover her shift. A few days after the incident, the employer issued an advisement which stated that all personal support workers are required to provide 48 hours’ notice of absence or accept the responsibility of sourcing a substitute colleague to cover any absenteeism.

On May 19, 2017, Simpson was informed that she would no longer be switching to the midnight shift because she had called in sick in April without giving enough notice. When Simpson informed the employer that she was unable to accept the change in schedule as a result of her previously-disclosed childcare obligations, Nimigon terminated her employment. The employer claimed that the termination was based on several cases of misconduct which included poor attendance, failing to follow instructions, creating a disturbance and poor performance.

Tribunal Decision

The tribunal found that Simpson’s termination was discriminatory because it was based, at least in part, because of her inability to work afternoon shifts due to childcare responsibilities. The tribunal further determined that the employer’s decision to withdraw the offer to allow Simpson to work mid night shifts was a failure to accommodate her family status obligations.

The vice chair noted that during the course of her employment with Nimigon, Simpson had a very good attendance record and was rarely absent from work due to illness. On previous occasions, Simpson would provide advanced notice of just a few hours if she or her children were ill and it was the employer, and not Simpson, who would source a substitute colleague to cover her shifts. It was therefore evident that Nigimon departed from its usual practices and procedures by issuing the written warning to Simpson and claiming that she was responsible for sourcing a substitute colleague.

Perhaps the most important element of the decision was that the tribunal declined to take the opportunity to clarify whether the test derived from the Federal Court of Appeal decision of Canada (Attorney General) v Johnstone (Johnstone) or the more recent test outlined in the tribunal’s decision of Misetich v Value Village Stores Inc. (Misetich) should be applied in cases of discrimination on the basis of family status.

The Federal Court of Appeal in Johnstone held that applicants must demonstrate that: 1) their childcare obligations engages the applicant’s “legal responsibility” for that child, as opposed to personal choice; 2) the applicant has made reasonable efforts to meet those obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible (as a form of “self-accommodation”); and finally, 3) that the resulting impact of the workplace rule interferes with the individual’s ability to fulfill their childcare obligations in more than just a trivial or insubstantial way.

The tribunal rejected this approach in Misetich as being too onerous and inappropriately conflating the test to meet for discrimination and accommodation on the basis of family status by, for example, requiring applicants to demonstrate that they attempted to “self-accommodate.” The tribunal held that the test to be applied for human rights cases should always be the same, regardless of the prohibited ground that it involves. Thus, the applicant must only be able to prove that they are in a parent and child relationship, that they have experienced adverse treatment, and that that treatment was due, at least in part, to discrimination based on their family status.

In this case, the tribunal did not determine which test should be applied for determining family status cases but noted that, regardless of the appropriate standard, Nimigon’s decision to terminate Simpson was discriminatory and that the employer ultimately failed in its obligation to accommodate her.

Ultimately, the tribunal awarded Simpson $30,000 in compensation for injury to dignity, feelings and self-respect.

Takeaway for Employers

While this case did very little to clarify the appropriate test for family-status discrimination and accommodation under the Ontario Human Rights Code, the key lesson for employers is to consider scheduling accommodations as a temporary measure (wherever possible) while also assisting their employees to explore other childcare or eldercare arrangements. This will go a long way in demonstrating that both tests for accommodating an individual’s family status responsibilities, as outlined in Johnstone and Misetich, are satisfied.

Click here to read the full article....

Article written by: Anna V Karimian

Article published on: May 2, 2019 BLG- Borden Ladner Gervais

Article spotted by: Kathryn Benson and posted by: Louise Burden

 

Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices

Much ink has been spilled over a recent decision by the Commission de la fonction publique (the "Commission") on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales[1], the Commission found that the plaintiff had been discriminated against when she was denied a position due to her pregnancy. The Commission decision was mainly based on her employer's comments and questions prior and during her interview. The Commission ordered that she be granted the position.

• FACTS

Following R v. Jordan[2], a landmark decision rendered by the Supreme Court of Canada on the subject of the delays for an accused to be heard, the Director of Criminal and Penal Prosecutions (the "DCPP") created numerous new legal positions in order to reduce such delays. The plaintiff in this case was already a lawyer with the DCPP when she found out that she was pregnant and applied for one of the newly created positions.

When her manager, who was also a member of the selection committee, found out that she had applied for one of the new positions, she told the plaintiff: "[our translation] you can't apply, you won't be here," referring to the fact that she would be on maternity and parental leave and therefore not available to start immediately. Furthermore, during the interview, she was asked if she was going to take a long or short leave following the birth of her child.

Prior to the interview, the plaintiff was ranked first out of the candidates who had applied and were selected for an interview due to her experience and her previous evaluations. Following the interview, she was ranked third. Therefore, she did not get the position. The employer explained that she was not selected for the position essentially because she did not "[our translation] sell herself" well during the interview.

• DECISION

In its decision, the Commission applied the two-prong analysis confirmed by the Supreme Court decision in the 2015 Bombardier case, that is (1) determine whether there is prima faciediscrimination and (2) if so, is the contested decision justified in some other manner.

In this case, the Commission determined that there was a clear link between the plaintiff's pregnancy, which is an prohibited ground of discrimination under the Quebec Charter of Human Rights and Freedoms, and the refusal to grant her the position. The DCPP knew that she was pregnant during the interview process and asked her a question directly related to her pregnancy that had no relevancy to the position. The Commission determined that such a question and any other sensitive question relating to a person's pregnancy are illegal and should never be asked during an interview. Candidates must not be asked questions based on prohibited grounds of discrimination during such a process. Moreover, the Commission also found that the manager's comment prior to the interview relating to the plaintiff's absence from work during her maternity and parental leave was also discriminatory.

The Commission explained that it was inconceivable that she went from being ranked first prior to the interview to being ranked third, and ultimately not getting the position, only because she didn't "[our translation] sell herself" well during the interview. She was the most experienced candidate and should have gotten the position. The Commission concluded its analysis by stating that her candidacy was simply refused because she was not going to be immediately available because of her maternity and parental leave.

The Commission determined that the only appropriate remedy was to order that the plaintiff be granted the position. Re-doing the interview or the selection process would only give the employer another opportunity to refuse her candidacy for the position. The Commission found that she should have gotten the position in the first place, therefore, the employer should be ordered to grant her that position.

• Lesson Learned

This decision not only serves as a cautionary tale for employers with regard to the type of questions that may be asked during interviews, but also with regard to comments that may be made prior to an interview. Furthermore, although not expressly mentioned in the decision, it does not appear that the Commission considered the employer's need to fill the position quickly to be a valid justification for refusing the plaintiff's candidacy. Indeed, an employer can hire a temporary employee to fill a vacancy during an employee's maternity and parental leave.

Finally, this decision is only one of many recent human rights decisions in Quebec where tribunals found that a candidate had been discriminated against mainly because of the questions that were asked during the interview process[3]. Therefore, employers, especially in Quebec, should consider updating their interview protocols or providing additional training to those conducting interviews to reduce their risks of having discrimination complaints filed by persons' whose candidacy are ultimately not retained.

Click to read the full article....

Article written/published  by: Michael Adams /FASKEN
Article published on:  OCT 10, 2018
Article spotted by: Kathryn Benson and posted by Louise Burden

If You Can’t Measure It, You Can’t Manage It – Limitations of Drug Testing Justify Refusal to Accommodate Medical Marijuana

Perceptions of marijuana have changed dramatically. What was an illegal drug is now recognized medical treatment and is soon to be a legal recreational activity. Employers have struggled to balance these changes with legitimate health and safety issues, particularly since technology to measure impairment has not yet kept pace.

The recent arbitration award in Lower Churchill Transmission Construction Employers' Association Inc and IBEW, Local 1620 explores how far an employer must go to discharge their duty to accommodate a medical marijuana user in a safety-sensitive job when it is not possible to measure current levels of impairment at work.

⇒What Happened in this Case

A union member was referred by his union for employment with Valard Construction LP (Valard). Valard was building a transmission line corridor for a hydroelectric facility. Both of the jobs he was referred for were considered safety sensitive by Valard. Neither required high levels of training or expertise. But, both worked with motorized equipment, near larger heavy equipment, in demanding conditions and often at remote worksites.

The company accepted the union member for employment conditional on a satisfactory drug and alcohol test. The union member tested positive because he used marijuana to manage pain from medical conditions. His doctor had prescribed him 1.5 grams of high-tetrahydrocannabinol-concentrated marijuana to use each night. His doctor restricted him from driving for 4 hours after use.

Over the next four months or so, the parties exchanged information to understand and try to manage the use of medical marijuana on the project. The company was not satisfied with the information provided, or that the union member could work safely on the project. The union filed a grievance alleging that the company wrongfully withheld employment and failed to accommodate.

⇒What the Arbitrator Decided

The arbitrator agreed that the union member had a disability, and the company had to accommodate him to the point of undue hardship. But, he said it would be an undue hardship for the company to accommodate the union member in either job because of the safety risk.

The arbitrator did not believe the union member's marijuana use at night and a four hour driving restriction were sufficient to address the safety risk. He concluded medical marijuana can cause cognitive impairment for longer than four hours. In some cases, up to 24 hours after use. That impairment could affect functioning the next day at the workplace. The arbitrator did not believe a general physician could properly assess the safety risk of that continuing impairment based on a clinic visit and a basic understanding of patient's work. He thought specialized training was necessary to fully understand the interaction between impairment and work restrictions in a given fact situation. 

The arbitrator concluded that it would be an undue hardship to allow the grievor to work where residual impairment from his evening use could not addressed by monitoring. He noted that there was no readily available means of measuring impairment from regular marijuana use and "if the employer cannot measure impairment, it cannot manage risk". This was reinforced by health and safety legislation that prohibited working while impaired. Accordingly, the arbitrator dismissed the grievance.

⇒What You Should Take Away

An authorization for medical marijuana is not a free pass to use marijuana at work. Employers must go through an accommodation process to determine whether the use of marijuana is related to a human right related need. If it is, it must be determined whether it can be accommodated in the workplace without undue hardship. As this case demonstrates, that may not always be possible in a safety-sensitive position particularly where current medical science and drug testing technology leaves us unable to determine if a worker is able to work free from current or residual impairment from drug use.

Click here to read the full article.....

Article written by: Shane Todd

Article posted on: Sept 12, 2018 - Fasken

Article spotted by; Kathryn Benson/posted by Louise Burden

Canadian tech sector not immune to sexism and discrimination of Silicon Valley

"Why can't a woman just be skilled at what she does and actually not play some other role you're expecting her to?"

Kirstine Stewart, former Twitter executive and current chief strategy office at Diply, says she wasn’t surprised by the content of a letter written by a Google engineer that ascribed gender inequality in tech industry to biological differences.

The sexism displayed in a controversial missive written by a now-fired male Google engineer is alive and well in Canada's tech sector, says one of the country's most prominent media bosses.

Former Twitter executive Kirstine Stewart says she wasn't surprised by the content of the internal letter, which went viral over the weekend, and cautioned anyone north of the border from being "holier than thou."

"Some of these opinions are borderless and I think that's why we have to be really diligent," says Stewart, also a former CBC executive who is now chief strategy officer with the online site Diply.

"I would caution anybody who thinks it's much better in Canada."

The widely shared letter, titled "Google's Ideological Echo Chamber," ascribed the tech industry's gender inequality to biological differences and criticized Google for pushing diversity programs. The engineer was reportedly fired, with Google CEO Sundar Pichai denouncing his screed for "advancing harmful gender stereotypes."

"I hope people don't look at (this) and go, 'Well, that's just the crazy U.S.,"' says Stewart, who joined Diply after spending three years at Twitter, first in charge of Canadian operations and then as head of North American media partnerships.

"We stand up a bit more and call each other on it because it's closer, I guess, to the values that we talk about more publicly than they do in the States. But I don't know that we're performing any better."

The stories coming out of Silicon Valley in the past few months have been stunning: steady claims of sexism and discrimination surrounding titans like the taxi-hailing app Uber and the venture fund 500 Startups.

Stewart says she's experienced her share of incidents over a lengthy career and adds it's frustrating that things don't seem to be moving forward enough.

"I had a female manager say to me that their managers had said, 'Oh, we're hoping that on the team you would be the nurturing one.' There were too many stereotypes and we have to get past stereotypes and into skills," says Stewart.

"Why can't a woman just be skilled at what she does and actually not play some other role you're expecting her to?"

The associate dean of outreach at the University of Waterloo is keen to be part of the solution.

Mary Wells, also professor of mechanical and mechatronics, recently won an award for encouraging women into science, technology, engineering and mathematics fields and says "there's absolutely been a culture shift" in recent decades.

The school's engineering curriculum includes discussion of such issues, but she admits more can be done to prepare both men and women for a new mindset.

"In first-year co-op a woman gets a job maybe before a male colleague, and right away he will say – and he's not trying to be mean – 'You must be their diversity hire,"' says Wells.

"The men can't believe that she can be just as good as he is or even better, and she also doesn't believe that she may be just as good as he is."

Click here to read the full article....

Article Spotted By: Kathryn Benson

Article Published in: The Globe and Mail / August 9, 2017

Article Written by:   Casssandra Szklarski

How to Support Transgender Employees During their Transition

Transgender Pride Flag

It's 2017, and U.S. courts are still in the process of refining workplace protections for transgender employees.

The tangled web of regulations at the local, state and federal levels can be confounding for employers of any size. This doesn't change the fact that the process of an employee transitioning from one gender to another is a sensitive issue that requires support on multiple levels, including direct managers, and yes, HR departments.

What kind of preparation does it require on the part of the employer for this type of situation?

What is the legal forecast around LGBT workplace issues going forward?

What other legislation should employers keep in mind for compliance?

Read more via a Q&A with Eric B. Meyer, employment lawyer and creator of The Employer Handbook blog.

Article Spotted by: Alison Peters
Article Written by: Ryan Golden
Article Published: May 2017

Substantial Award Against Employer in Sexual Harassment Case Upheld on Appeal

The case is another reminder that employers who don't follow best practices while investigating employee grievances could end up with a steep payday.

A trial judge awarded $60,000 in moral damages to an employee who was repeatedly sexually harassed by her co-worker. In Doyle v. Zochem Inc. (PDF), the Ontario Court of Appeal recently upheld this award and dismissed the employer's appeal. This decision is a stark reminder of the importance of properly investigating employee complaints. It also confirms that moral damages and damages under human rights laws may both be awarded to an employee, without being characterized as "double dipping".

Facts

MD worked with Zochem Inc. ("Zochem") for nine years, supervising an all-male group of refinery workers. She was the only woman working there. BR was the plant maintenance manager. Zochem considered him to be irreplaceable. In the course of their work, BR sexually harassed MD, making frequent inappropriate and belittling comments.

Prior to a July 14, 2011 meeting, BR and another co-worker had been informed that MD was to be terminated. During the July 14 meeting, BR and the co-worker ignored the harassment issues raised by MD and demeaned and belittled her. MD left the meeting in tears. Still unaware that she would soon be terminated, she made a complaint of sexual harassment. Zochem did a cursory investigation and heard from BR, but did not give MD an opportunity to respond.

Five days later MD was terminated without cause. She had to go on medication for anxiety.

Click here to read more on the trial judgement and the appeal decision....

Article Spotted by : Kathryn Benson

Article Written by: Hannah Roskey

Article Published: 2017