The Return to Work Following COVID-19

If an employee has a presumptive or confirmed case of Covid-19, what is the duty of the employer with respect to notifying or disclosing the presumptive or confirmed case to other employees?

The Law

Employers have an obligation to provide a safe environment for employees. Given the unprecedented and infectious nature of Covid-19, exactly how to ensure a safe workplace for employees has become increasingly difficult to define. Consequently, the duties of an employer, as they relate to health and safety, have never been more confusing.

The primary source of employers’ legal obligations with respect to health and safety come from Occupational Health and Safety laws. These laws vary from province to province and there are also federal laws applicable to federally regulated employees. In Ontario, the Occupational Health and Safety Act requires that employers “take every precaution reasonable in the circumstances for the protection of a worker”, in addition to other specific obligations as set out in the Act.

What to do When an Employee Tests Positive for Covid-19?

If an employee discloses a positive test, or has presumptively contracted Covid-19, they should be directed to stay home and self-isolate. Furthermore, self-isolation should not be discontinued unless the relevant health authorities deem it safe to do so.

In Ottawa, for example, Ottawa Public Health (OPH) should be notified of a positive case. Individuals that have had close contact with an infected employee (spent extensive time within a 2-metre radius), such as fellow employees, may need to take additional precautions and will likely be contacted by OPH for additional guidance.

OPH publishes useful material for employers with respect to Covid-19, including guidance for scenarios where an employee or patron of a workplace has tested positive for Covid-19.[1]

Disclosure of a Positive or Presumptive Case

Bearing in mind an employer’s obligation to keep its workplace safe, once an employee has been advised to self-isolate and contact their medical health professional to discuss their symptoms, treatment, quarantine protocols, and next steps, employers should notify other employees in the workplace who may have been in contact with the infected or symptomatic employee. Those employees who had contact with the infected employee should also be advised to go home and self-isolate.

In terms of notifying all employees of a confirmed or presumptive case in the workplace, whether or not that is required will depend on the circumstances. Potential contact with an infectious employee will vary widely depending on the workplace. In some workplaces, it will make sense to notify all employees, and in others, potentially not. The overarching objective, however, must always be to “take every precaution reasonable in the circumstances for the protection of a worker.”[2] Given that what is “reasonable” is difficult to ascertain when dealing with an unprecedented pandemic, contacting local health authorities for advice and guidance and implementing their directives appears to be the most reasonable approach.

Privacy

Although an employer should notify employees that have potentially been exposed to an infectious co-worker, employers should attempt to do so without identifying the infectious employee by name or other identifying information.

When navigating a pandemic, employers may need to collect and use different types of information to respond to various challenges as they unfold. Given the need to possess and make use of sensitive information, employers should be particularly vigilant about how such information is used or disclosed to others.

As a general best practice, employers should safeguard employee health information and only disclose this information as may be required by law, or as required by public health officials.

Employers should seek legal advice if they are unsure of their obligations with respect to the collection, use, and disclosure of employee health information.

Spread or Transmission at the Workplace

Employers should be aware of the possibility that an employee may contract Covid-19 while at work or providing services to the public on behalf of an employer. In these cases, an employee may file a claim with the Workplace Safety Insurance Board (WSIB). Additionally, if an employer learns that an employee contracted Covid-19 while at work, that triggers an employer’s reporting requirements to WSIB. WSIB has responded quickly to the challenges of Covid-19 and has already processed and approved nearly 3,000 claims.[3]

Finally, if an employer learns that a worker has an occupational illness, such as Covid-19, due to an exposure at the workplace, or that a claim has been filed with the WSIB, the employer must notify the Ministry of Labour, Training and Skills Development in writing within four days.[4]

[1] https://www.ottawapublichealth.ca/en/public-health-topics/covid-19-information-for-workplaces.aspx#What-do-I-do-if-a-patron-to-my-business-has-tested-positive-for-COVID-19

[2] OHSA, s. 25(2)(h)

[3] https://www.wsib.ca/en/novel-coronavirus-covid-19-update#covid

[4] https://www.ontario.ca/page/covid-19-coronavirus-and-workplace-health-and-safety