InfoFlash – English

	InfoFlash is an electronic publication to keep you informed about emerging business news as it happens. Feedback? Related Publications Alberta:  Best Practice Guideline British Columbia:  H1N1 FAQ Manitoba:  H1N1 Flu Pandemic and the Workplace New Brunswick: Be Safe Act Now Nova Scotia:  H1N1 Q&As Ontario:  H1N1 and your workplace Quebec:  Reminder sheet outlining the applicable standards Saskatchewan:  H1N1 Influenza and Occupational Health and Safety

This year, in light of the H1N1 virus, workplace pandemic preparedness is of particular interest to employers and employees who may be questioning their legal rights and obligations if a flu outbreak occurs in their workplace. Best practice in pandemic management involves overlapping and at times seemingly contradictory statutory duties.

Ideally, the simplest solution is to provide an alternative work arrangement, such as telecommuting, or to cover paid sick time for any employee who exhibits flu-like symptoms. However, if paid sick time is not viable, employers must then observe a number of statutory duties, as outlined below:

• Workplace Safety: Occupational health and safety legislation in many provinces imposes a duty on employers to provide their employees with a safe workplace. This could be interpreted as requiring an employee with a confirmed or suspected case of H1N1 to stay home. If an infected employee comes to work, other employees who are concerned that their place of employment is unsafe could bring a complaint to the applicable labour regulator. 

However, while it sounds straightforward to exclude infected employees from the workplace, other statutory duties may make this policy difficult to implement. For example, an employee who has been prohibited from coming to work could allege discrimination or that they have been constructively dismissed, even though the prohibition could help the employer comply with workplace safety requirements.  

• Human Rights: Human rights legislation across Canada requires that employees with a disability be accommodated up to the point of undue hardship. Conflicting views exist regarding whether or not H1N1 or influenza generally would be considered a disability for the purposes of such legislation. However, assuming that influenza is considered a disability, then employers must be prepared to accommodate the affected employee by providing an alternative work arrangement, such as telecommuting, for example, if it is feasible in the employer’s industry. 
     
• Employment/Labour Standards: Employment and/or labour standards vary across the jurisdictions. For example, Ontario’s Employment Standards Act does not require that employers provide paid sick leave to an employee. However, it does permit an employee to take time off for “personal emergency leave” for up to 10 days per year. This is unpaid leave that can be used for personal illness or for the illness of a family member.

As an alternative to personal emergency leave, in Ontario the Ministry of Labour states on its webpage that an employer could require an employee to take vacation time, or impose a temporary layoff. If the employer considers these unpaid measures, though, it must be prepared to face potential human rights allegations that excluding an employee from the workplace for reasons of illness is discrimination. Employers must be prepared to demonstrate that they have made all possible attempts, up to the point of undue hardship, to accommodate an infected employee.

In response to H1N1 concerns, a number of provinces have published guides and factsheets outlining applicable information for employers on human rights, occupational health and safety and employment standards issues. In addition, provincial and federal health ministries and other health bodies have posted useful medical information regarding the H1N1 virus. For example, the Canadian Medical Association recently suggested that employers not require medical notes for employees who are ill with the flu. Their reasoning was that physician time would be better utilized providing treatment rather than completing paperwork and that it could limit the risk of transmission by not requiring people with flu symptoms to attend their physician’s office.

Any policy that an employer adopts should be flexible enough to accommodate a variety of needs as they arise. As well, proper communication of all workplace policies and transparency with employees can contribute to employees accepting and adhering to the policies, in the best interests of a healthy workplace. 

Please contact Leanne Hull, Gregory Durant or your Watson Wyatt consultant for additional information.

For other information about Watson Wyatt research and services: call 1-866-206-5723 or email infocanada@watsonwyatt.com.

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