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Over the past few days, the rapid spread of the Covid-19 pandemic has challenged every member of society to modify their day-to-day lives and contribute in the effort to slow down and limit the spread of the virus. We understand that, as an employer, you may be unsure what your rights and obligations are in these circumstances.

The purpose of this article is to provide some guidance in this respect in terms of measures to be put in place to ensure a safe workspace, your rights and obligations regarding employees self-isolating or affected by Covid-19 and your obligations if your company is forced to lay-off employees.

The Governmental Measures in Place

The provincial and federal government has adopted measures to limit public gatherings. These measures include:

• Closure of the public and private school system, including daycares and universities from March 16, 2020 to March 27, 2020;[1]^,[2]
• Banning of visits of hospitals, old age residences as well as Centres d’hébergement de soins de longue durée (CHSLD)[3]
• Closure of several cultural and recreational businesses such as bars, amusement parks, ski hills, gyms and other fitness studios;[4]
• Suspension of all religious ceremonies unless essential;[5]
• Tasting counters in grocery stores and department stores are prohibited[6]

Aside from these measures, Canadians are encouraged to avoid any non-necessary travel outside the province.

Furthermore, all travelers entering Canada are required to self-isolate for a period of 14 days upon entry.[7]

Employer’s Obligation to Provide a Safe Workplace

As an employer, you have an obligation to provide a safe workplace for your employees.[8] As such, it is your responsibility to put in place appropriate measures to avoid employees contracting the Covid-19 virus in your workplace.

Firstly, employees should be advised not to report to work if they present any symptoms identified as related to Covid-19.[9] Furthermore, if a person reports any such symptoms or appears to present such symptoms, they should be advised to return or stay at home. In this regard, employees should be reminded of their obligation to protect their own health and safety as well as that of their coworkers.[10]

Secondly, in order to prevent the spread of the virus in the workplace, the Quebec Government recommends to employers:

• To allow their employees to work remotely if possible; and
• To avoid non-essential work meetings;
• To stop requesting a doctors’ note from their employees if they are absent for health reason as this puts an unnecessary strain on the healthcare system.[11]

Finally, you may consider other measures in order to minimize the risk of contamination in your workplace, including:

• Cancelling any non-necessary work-related trip;
• Designating an employee or group of employees in charge of closely monitoring new developments and adapting the workplace’s policy;
• Adopting measures to avoid close contact between employees by keeping a minimum of one to two meters’ distance between individuals at all times;
• Converting in-person meetings to phone-calls using technological means such as Skype, FaceTime or WhatsApp;
• Putting in place a modified work schedule to stagger working hours and limit the amount of interaction between personnel while at the office
• Enhancing cleaning of surfaces in high-traffic areas in the workplace (main entry doors, kitchen area, bathroom doors, etc).[12]

Obligations Regarding Employees who are Affected by Covid-19 or Self-Isolating

The question of whether an employer must continue to pay a self-isolating employee during their period of self-isolation will depend on several factors, including the reason for said self-isolation (whether it is because of the illness, because a family-member is ill, as a preventative measure or because the person is returning from travel) and whether accommodation measures are available.

As is the case for any type of illness, if an employee or one of their family-members is affected by Covid-19, they should be put on the employer’s health insurance plan. Alternatively, the employee may wish to claim unemployment insurance or use their personal vacation days in order to be compensated during this period.

Furthermore, in keeping with the employer’s obligation to provide a safe workspace, employees with family-members affected by Covid-19 should be advised to disclose this information and, if feasible, work from home.

If a person is self-isolating as a preventative measure, is willing and able to accomplish their work remotely, and if this measure has been approved by the employer before-hand, an employee should be entitled to receive compensation. However, if an employee self-isolates without the employer’s consent, this may be considered as a refusal to work and disciplinary action could be considered. The legitimacy of the employee’s refusal to work should be verified, and the appropriate sanction should be determined on a case-by-case basis. Spiegel Sohmer Inc. is qualified to assist your business in determining your obligations.

At this stage, an employee presenting an underlying condition making him or her more susceptible to contracting Covid-19 may also require special accommodation. The measures taken to accommodate this employee must be taken on a case-by-case basis which will depend on the specific circumstances of your business. Again, Spiegel Sohmer Inc. can help you elaborate the appropriate policy for your workplace.

Temporary layoffs

In the unfortunate event that your business must lay off employees, it can do so temporarily for a period of up to 6 months.

Near the expiry of this six-month period, if the employees’ services continue not to be required, as things currently stand, you will have an obligation to provide them with a written notice and an indemnity. The length of time for the notice and amount of indemnity will depend on the length of the employees’ employment.

We can assist you in elaborating a plan of action which suit your business’s needs.

Conclusion

There is no doubt that the current situation brings uncertainty and stress to employers and employees alike.  Spiegel Sohmer Inc. can assist you in determining the rules and policies which are appropriate to your workplace in order to face this unprecedented situation.

Note: the authors would like to thank Me Éliane Dupéré-Tremblay and Filipe Costa (articling student) for their precious help.

[1] https://www.quebec.ca/premier-ministre/actualites/detail/le-gouvernement-du-quebec-annonce-la-fermeture-des-ecoles-des-cegeps-des-universites-et-des-services/ ; The Government further indicated that a renewal of this measure for a two-week period was possible;

[2] The Government indicated that a special mechanism would be put in place for children whose parents work in the health care system.

[3] https://www.quebec.ca/premier-ministre/actualites/detail/le-gouvernement-du-quebec-declare-l-etat-d-urgence-sanitaire-interdit-les-visites-dans-les-centres-h/

[4] https://www.quebec.ca/en/premier/actualites/detail/le-gouvernement-du-quebec-exige-la-fermeture-de-plusieurs-commerces-endroits-publics-et-lieux-de-ras/

[5] http://www.fil-information.gouv.qc.ca/Pages/Article.aspx?aiguillage=diffuseurs&type=1&listeDiff=2&idArticle=2803169711

[6] http://www.fil-information.gouv.qc.ca/Pages/Article.aspx?aiguillage=diffuseurs&type=1&listeDiff=2&idArticle=2803169711

[7] https://pm.gc.ca/en/news/news-releases/2020/03/16/prime-minister-announces-new-actions-under-canadas-covid-19-response

[8] Article 51 of the Act respecting occupational health and safety

[9] The Quebec Government identified the following three symptoms as key: cough, fever and respiratory difficulties: https://www.quebec.ca/sante/problemes-de-sante/a-z/coronavirus-2019/#c46349

[10] Article 49 of the Act respecting occupational health and safety.

[11] http://www.fil-information.gouv.qc.ca/Pages/Article.aspx?aiguillage=diffuseurs&type=1&listeDiff=2&idArticle=2803169711

[12] For more information on routine surface cleaning, see the following policy prepared by Health Canada and can be accessed here: https://www.canada.ca/fr/sante-publique/services/maladies/2019-nouveau-coronavirus/professionnels-sante/mesures-sante-publique-utilisees-reduire-covid-19.html