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Swine Flu Outbreak: Legal Issues for Canadian Employers

By Tim Lawson and Douglas Gilbert  5/13/2009
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According to the World Health Organization (WHO), as of May 5, 2009, there were more than 1,100 confirmed cases of the virus known officially as influenza A (H1N1), which has startled the world with its rapid spread. The virus has spread as far as Austria, Germany, Israel and New Zealand. Currently, there were 330 confirmed cases of H1N1 as of May 12 in nine provinces and territories of Canada, according to the Public Health Agency of Canada. The rapid spread has, in part, prompted the WHO to upgrade its pandemic alert level from phase four to phase five, which is the second highest alert phase and one phase before the declaration of a global pandemic.

The quick spread of H1N1 and the upgrade of the WHO pandemic alert level garnered much media attention. Employers are understandably concerned about the impact of the potential influenza outbreak on their businesses and their employees. This article identifies key legal issues that may arise as employers prepare to deal with a potential influenza pandemic and its impact on the workplace.

Occupational Health and Safety Legislation

Occupational health and safety legislation imposes general duties on employers to provide a safe workplace. During a potential influenza pandemic, this duty raises specific employee health-related issues for employers. The steps that an employer must take to provide a safe workplace will focus on reducing the probability of employees contracting H1N1 at work. In determining the precise nature of the steps to be taken, guidance may be drawn from Ontario’s experience with the Severe Acute Respiratory Syndrome (SARS) outbreak in Toronto in 2003. During the SARS outbreak, the Ministry of Labour and public health authorities specifically advised employers to: 

Ensure that employees did not come to work when suffering from flu-like symptoms. 
Promote good hygiene practices in the workplace. 
Ensure that engineering controls such as ventilation systems are appropriately maintained.
Distribute and instruct employees in the use of personal protective equipment as appropriate (e.g., masks, gloves, tools, etc.).

The advice is equally applicable in the H1N1 outbreak. Following the advice of public health officials during this current outbreak will also help employers discharge their duty to provide a safe workplace.

Employers also should be mindful of their obligation to provide information to employees under occupational health and safety legislation, which could extend to the obligation to inform employees about the risk of H1N1 infection in the workplace and steps taken by the employer to mitigate this risk.

Work Refusals

Given the media’s intense focus on the influenza outbreak, some employees may refuse to come to work or to perform certain work tasks if they believe that they may become infected with the H1N1 virus. Employers should be informed about the right of employees to refuse unsafe work and how to respond when this occurs. The right to refuse unsafe work is enshrined in the Ontario Occupational Health and Safety Act, Part II of the Canada Labour Code, and comparable legislation across Canada. Employers should be aware that they are prohibited from disciplining or threatening to discipline employees for refusing to work unless and until the work refusal process has been completed and a Ministry of Labour inspector has concluded that there is no danger.

Employment Standards Legislation

In a pandemic, employees may require time off in excess of their sick leave entitlement due to quarantine, personal illness or because they are caring for sick family members. Employments standards laws in a number of jurisdictions provide for unpaid emergency leave. In Ontario, for example, employers who employ more than 50 people must give employees 10 days of unpaid emergency leave due to personal illness, injury or medical emergency, or illness, injury or medical emergency relating to certain family members.

Human Rights Legislation

Employers also must be mindful of their duties and obligations under human rights legislation. Differential treatment on the basis of actual or perceived disability may violate human rights legislation. The definition of disability, particularly in Ontario, has been interpreted broadly. During the 2003 SARS outbreak, the Ontario Human Rights Commission said that it would treat SARS as a “disability” for the purposes of the legislation. It is reasonable to conclude that employees who contract H1N1 may similarly be concluded to be disabled.

In these early stages of concern, as we await word on whether the world is experiencing a full H1N1 pandemic, it is wise for employers to take steps to prepare their workplace. Understanding the duties and obligations under occupational health and safety, employment standards and human rights laws is one concrete step toward ensuring that your organization is prepared to respond to a pandemic and its impact on the workplace.

Tim Lawson and Doug Gilbert are attorneys with Heenan Blaikie LLP in Toronto.

Editor’s Note: This article should not be construed as legal advice.

Related Article:
Flu Outbreak Requires Swift Response from HR
, SHRM Online Legal Issues, April 29, 2009 

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