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Managing workplaces under the flu watch |
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| Take precautions without succumbing to generalized fears |
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Written by Kevin Coon, Employment and Health and Safety Lawyer, Baker & Mckenzie
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 The confirmation that the contagion, “Swine Flu”, is present in Canada
raises potential issues about the legal rights and responsibilities of
both employers and employees.
This situation is highly dynamic and the comments contained below may
change as a result to changes in circumstances and new information from
public health authorities. However, based on past experiences with
similar public health issues, most notably SARS, it is prudent for
employers to consider the issues and take reasonable steps now. The
following will assist employers in doing so.
In addition, there are very specific risks and issues for employers operating in the healthcare industry that are not addressed in detail in this alert. For information specific to the healthcare industry please contact us and we can provide more precise advice and assistance.
While most of the information below is directed to Ontario employers, many other Canadian jurisdictions are covered under similar legislation.
Occupational Health and Safety Act (OHSA)
Statutory Duty to Provide a Safe Workplace – Employers are under a duty to ensure the safety of employees. Generally speaking, this duty requires employers to take reasonable steps to ensure that employees are safe, and that the workplace is reasonably safe. As such, employers may wish to increase the safeguards in place at the workplace to reduce the risk that an employee may contract the virus at work. It is advisable that employers put in place the protections suggested by the Ministry of Health and/or World Health Organization (WHO) and/or Centers for Disease Control. Such steps would include, for example:
- Ensuring that ventilation systems in the workplace are clean and in good condition;
- Providing employees with antiseptic cleanser;
- Ensuring that the workplace is kept clean and free of germs to the extent reasonably possible;
- Reminding employees of the need to wash their hands regularly, and to cover their mouthwhen sneezing or coughing;
- Taking reasonable measures to ensure that employees at work are not symptomatic and therefore likely to infect others and the work-product.
- Remind employees that are experiencing flu-like symptoms to stay away from the workplace and immediately see a doctor.
Employers who operate in industries in which employees perform job duties which could impinge on the health and safety of the public, where there is a high degree of travel required (and to places where the employee could contract Swine Flu), or where invasive procedures are an unavoidable part of the employees work will be required to be even more diligent in their attempt to secure the workplace. Such industries may include: food services, retail, processing or preparation; healthcare; schools; and so on. In such industries employees may be at an increased risk of contracting Swine Flu, or may put others at an increased risk of contracting it.
An employer may be required to suspend an employee who creates or created unsafe working conditions. Thus, employees who choose not to remain at home in isolation or quarantine if ordered to do so, should be prohibited from entering the workplace.
Employers should be cautious, however, to ensure that they are not succumbing to generalized fears of contagion. While it is important to ensure that the workplace is a safe environment and that employees are protected from legitimate risks, it is also important not to be swept up in unreasonable and unfounded generalized fears of contagion. Fears that are not based upon genuine risk may result in unfair or discriminatory treatment toward employees of certain ethnic backgrounds. Such treatment is of course prohibited by the Ontario Human Rights Code.
Duty to Direct Workers –
Under the OHSA, employers are under a duty to provide information,
instruction and supervision to employees in order to protect employees
from workplace hazards or dangers. This duty requires employers to
ensure employees are acquainted with workplace hazards and how to
protect themselves and other employees. This duty extends not only to
employees, but also to any workers at the employer’s place of business.
In
addition to educating employees about Swine Flu generally, employers
should also take time to educate employees as to how they can, if
necessary, protect themselves from any risks associated with working in
a particular place of work.
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