Handling a COVID-19 (Coronavirus) Pandemic at Work

An employee at a government-owned long term care facility sent an email to John Oakley, host of the John Oakley Show on Global News Radio 640 Toronto. In her email, the employee explains that a dietary worker returned from Wuhan, China on a Monday, and reported to work on the Tuesday.

Staff members who work with this employee knew that she were recently in the epicentre of the coronavirus outbreak. Despite requests from management, the dietary work refused to self-isolate, opting instead to continue working.

The long term care facility’s upper management and the government public health department concluded that the employee will not be barred from the workplace. The emailer claims that the worker had a constitutional right to refuse to remain at home and self-isolate, or quarantine herself.

The long term care facility staff were disappointed in the decision. They felt that the worker’s presence around food and elderly patients posed a health risk.

Do the rights of an employee trump the rights of their coworkers and the employer? What are an employee’s rights when an employer requests that they self-isolate to help prevent the spread of coronavirus in the workplace? How far can an employer go before breaching employee rights?

Lior Samfiru is an employment lawyer in Toronto, and partner at Samfiru Tumarkin LLP. He joins host John Oakley on Global News Radio to discuss this dilemma.

Can an employee end coronavirus self-isolation or quarantine and return to work against their employer’s wishes?

This is an extremely sensitive and problematic issue for employers. On the one hand the company must consider the safety of its employees. On the other hand, they must protect the human rights of the employee in question (their rights stem from the Human Rights Code, as well as the Employment Standards Act).

An employer must follow guidance from public health officials. The latest guidance stipulates that an employer cannot force self-isolation on an employee unless the following criteria are met:

• the employee just returned from Wuhan, China; and
• they are exhibiting symptoms of coronavirus (COVID-19).

Since the worker in this scenario only meets one of those criteria (she recently traveled to Wuhan), the employer cannot order the employee to stay away from the workplace. If the company does take that approach, they run the risk of engaging in a human rights violation. The employer would be discriminating against an individual due to a perceived medical condition, and potentially based on the individual’s race.

What can I do if I believe that my workplace has been compromised by coronavirus?

Those employees who feel unsafe in their workplace due to contamination by coronavirus have a right to refuse unsafe work due to coronavirus. Under the Occupational Health and Safety Act, if an employee feels that their safety has been put at risk or is in danger, they can refuse to work.

When an employee triggers this event, the Ministry of Labour may be called in to determine if an employee’s refusal to work is appropriate.

In 2003, when SARS and the fear of its spread across Canada was top of mind, the Ministry of Labour found that employees were not allowed to refuse work. Employees were not found to be at risk of contracting SARS from their workplace during the SARS outbreak in Toronto.

If an employee contracts coronavirus from a coworker who failed to self-isolate, can they file a lawsuit?

An employee who contracts coronavirus from a coworker may be able to file a lawsuit against their employer. They would have to prove that their coworker was contaminated with COVID-19, exhibiting symptoms of the virus, and that their employer failed to react appropriately. An employee may receive damages from their employer if the company is found to have acted recklessly.

There is another likely outcome in this scenario. If it is determined that the employee contracted coronavirus from their workplace, it may become a Workplace Safety and Insurance Board matter. This form of insurance would protect an employer that enrolls in WSIB coverage.