Q&A: What you need to know as an employer or employee about COVID-19
Employment lawyer Howard Levitt explains what happens if an employee is forced to self-quarantine
If you're experiencing any symptoms of COVID-19, you're expected to self-quarantine to protect your health and your workplace. In the worst cases, self-quarantine can last as long as 14 days.
But who protects your job if that happens?
No coronavirus cases have been identified in New Brunswick, but if symptoms should strike, what obligations does your employer have toward you and what rights do you have as a worker?
CBC's Information Morning Fredericton spoke to Howard Levitt, a labour and employment lawyer to find out. He's one of Canada's leading experts on employee and employer relations. Here's what he had to say.
Are employers under obligation to keep paying you, even if you cannot report to work?
No, they're not because if the employer doesn't even have a sick leave policy or … [a] short-term disability benefit policy, they don't have to pay when you actually are sick, so they certainly don't have to pay you in a context in which you are symptom-free. But if they decide they want you to stay home [and] they don't let you attend work, then even though there may not be a sick leave policy, I think you have a reasonable argument — and this relatively untested ground — to claim that you've been constructively dismissed if they don't pay you.
How would you argue that?
You would go before a court. It would be a court case. Depending on what's at stake, it would either be a superior court case, a Queen's Bench case, or a small claims court case. You'd go and argue that you were forced to take two weeks off or more as the case may be. If the employer didn't pay you — an unpaid suspension is a constructive dismissal — and therefore you're being constructively dismissed. And that would be a reasonable position to take. So when you asked me earlier are they required to pay you, not technically, but they're failing to pay you could well be a constructive dismissal and probably would be.
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Wouldn't you have to hire a legal representative to make that case?
Well unless your income is so small … that it's a small claims court case, in which case you could do it yourself, you're right. You'd have to hire a lawyer. But part of your court costs, part of your legal expenses are repaid by the employer at the end of the day.
What obligations do your employers have to keep you safe in the workplace?
They have extensive obligations. In fact, if they're negligent in enforcing them, other employees will become sick because they weren't proactive. [They'd] have a good case against the employer for negligence. So employers should say if you've been in a stricken area such as Piedmont, Italy, or South Korea or much of China or Iran, don't come back to work for 14 days. That doesn't apply only to employees, it applies to customers, to anybody entering the workplace.
They've got a duty to keep their employees safe, and to make sure that everything is well-sanitized and regular scrubbing is regular cleanings and of course hand sanitizers everywhere.
Does the employer have an obligation to make sure his or her employees are not passing on anything to customers?
That is absolutely right. If you're an employer and Health Canada has said these are dangerous areas, do not travel there and they should be quarantined for 14 days upon return, and you don't ensure that your employee returning from overseas is quarantined because they're asymptomatic, but then they catch something and other people around them catch something … then the employer was negligent on ensuring they stayed home. And the employer would be liable to those members of the public who entered the workplace.
So if there's no one there to stand up for your rights and you can't afford a lawyer, you can try the small claims route?
Sure, but the reality is this: If someone gets quite sick, there's enough money in that case that I'm sure you'll find a lawyer take it even if it's on contingency. We're talking about people potentially even dying, and survivor claims. These are serious issues, to say nothing of the pain and suffering of having the virus in any serious way yourself. If an employer was careless, [if] it was negligent, [if] it didn't make sure people self-quarantined or were forced to quarantine and people then got sick in the workplace because the employer failed to do that. Well, those people, whether they're other employees or members of the public, have a very good case.
Do people have a right to go back to their job?
Yes, they do. First of all, if they're sick themselves, they have a right pursuant to Human Rights Code to go back to their job. Secondly, if they've responsibly self-quarantined and that's why they're doing it, that's why they're staying away from work [and] not for some other reason using that as an excuse … if they really are coming back from Iran or Wuhan and self-quarantining and then they get fired ... they would have a great case for wrongful dismissal.
What about temporary workers? Casual workers? What protections do they have in any workplace?
If somebody is a temporary worker, so they have no right to work on any given day, but they show they've been discriminated against as a result of suddenly not being hired even once every couple of weeks and it's because they self-quarantined, they'd likely have a good case before the Human Rights Tribunal.
With files from Shaun Waters