• EBOLA - Balancing Risk and Rights
  • November 15, 2014 | Author: Kristin Taylor
  • Law Firm: Cassels Brock & Blackwell LLP - Toronto Office
  • As the crisis in west Africa grows and North America has experienced its first death from Ebola, Canadian employers are starting to feel less immune from this threat and to question what actions they can - and should - take to ensure the health and safety of their employees.

    While there have been no cases of Ebola in Canada, for employers that have employees with families in west Africa who have recently visited or who are currently visiting, the issue may be real and immediate. If such employers provide care or support to the ill, elderly or children, health and safety concerns should be paramount. For employers whose employees interact with the public, there may be a need to educate and assuage concerns.

    Ebola causes haemorrhagic fever and is often fatal because of significant internal bleeding and organ failure. Fatality estimates range from 50 to 90%. It is a deadly, frightening disease. Equally important to note though is that Ebola does not spread easily from person-to-person. It is spread through direct contact with infected bodily fluids. According to a Fact Sheet prepared by Public Health Ontario, symptoms of Ebola begin within two to 21 days after exposure with a sudden onset of fever, usually with headache, malaise and myalgia and gastrointestinal symptoms are common.

    Consistent with their obligations under the Occupational Health and Safety Act, employers who have reason to believe an employee could have been exposed to Ebola - for example, if the employee is returning from west Africa - should conduct a risk assessment. Public Health Ontario has prepared such an assessment based on three main factors: (1) travel history, (2) activities in affected areas that increase risk, and (3) presence or absence of symptoms and signs compatible with Ebola. It is important to keep on top of latest updates from the World Health Organization ("WHO"), however, as the risk assessment is outdated in its identification of risk areas. (Nigeria, for example, was declared free of Ebola by the WHO on October 20, 2014.)

    Employers must have an objective basis for conducting a risk assessment of employees to avoid allegations of discrimination contrary to the Human Rights Code. Those allegations could be made on any of the five race-based grounds (race, ancestry, place of origin, colour, ethnic origin) or disability (which includes perception of disability). Where an employer has a reasonable basis to be concerned about exposure, the employer should place the employee on a leave of absence immediately to eliminate the threat to co-workers and the public. That leave of absence should be paid. If infection is confirmed, the employee would then access the employer’s sick benefit or short-term disability benefit plan. If the employee maintains he or she is not infected, having completed a 21 day leave of absence, the employer should require medical certification of fitness to return to duty. Collective agreement obligations to unionized employees should be reviewed and respected.

    Employers also should keep in mind employees’ entitlement to leaves to provide care or support to designated family members under the Employment Standards Act, 2000. Eight weeks of family medical leave is available to Ontario employees if such family member is certified to have a serious medical condition with a significant risk of death occurring within 26 weeks. Infection with the Ebola virus would meet this requirement. Further, as of October 29, 2014, Ontario employees also may access two new leaves: (1) eight weeks of family caregiver leave to provide care or support to designated family members certified to have a serious medical condition (without the same requirement of there being a significant risk of death occurring within 26 weeks), and (2) up to 37 weeks of critically-ill child care leave to provide care or support to a child, step-child, foster child or child under legal guardianship who is under 18 years of age who has been certified to be critically ill. These leaves can be taken consecutively; they are not cumulative. Although these leaves of absence are unpaid, Employment Insurance benefits will provide income support, less a two week waiting period.

    Also important to note is an employer’s obligation to maintain employees’ privacy and to keep medical information and identities confidential. Breaches of privacy rights can result in tort damages to Ontario employees.

    Balancing rights and obligations in a crisis is never easy. Employers who proactively assess risk and develop protocols now to deal with the Ebola crisis will be far better off than those who ignore the potential implications for their business and are put in the position of reacting in crisis mode later.