Preventing the spread of COVID-19 in the workplace: key considerations for Alberta employers

Preventing the spread of COVID-19 in the workplace: key considerations for
Alberta employers
By Janna Young and James Jeffrey

As of March 9, 2020, there are over 109,000 reported cases of coronavirus disease 2019 (COVID-19)
worldwide, with over 75 cases in Canada.1 All levels of government in Canada are working together to
manage the virus and take appropriate preventative measures. But what should employers be doing?
Many legal issues arise in the context of contagious diseases in the workplace. This article will take a
high-level approach to legal issues engaged by COVID-19 for Alberta employers. Any employer
dealing with specific issues relating to communicable diseases in the workplace should seek legal
advice, as various factors, such as the employer's particular industry, workplace policies, and
collective agreements or employment contracts, will impact the optimal response.
Occupational health and safety
Employers in Alberta have a legal obligation to ensure the health and safety of their workers and
visitors in the workplace.2 For provincially regulated employers, many of these obligations are set out
in the Alberta Occupational Health and Safety Act (OHSA), and for federally regulated employers, the
Canada Labour Code (CLC).3 Among other things, each is aimed at the prevention of workplace
illnesses and diseases, such as COVID-19, and ensuring workers have the right to be informed of such
workplace hazards, to express health and safety concerns, and to refuse dangerous work, and to not
be subject to discriminatory action for exercising those rights.4
     What preventative measures should employers take?
Alberta employers are not only obligated to respond to health and safety issues, but to take action to
prevent them as well.5 The Public Health Agency of Canada and Alberta Health Services each
recommend a number of common-sense measures to prevent the spread of COVID-19 and other
illnesses:
       advise employees to stay home if they are feeling ill;
       remind employees to regularly wash their hands with soap and water for at least 20 seconds,
        and to apply alcohol-based hand sanitizer if soap and water are unavailable;
       remind employees to keep their hands away from their mouth, nose, and eyes; and
       clean frequently touched surfaces, shared workstations and equipment.6
Alberta employers also have a legal obligation to inform workers of circumstances affecting their
health and safety at work.7 That obligation would include information regarding the risk of
contracting the virus at work, and the measures implemented by the employer to control or
eliminate that risk.
Alberta employers also have a legal obligation to inform each worker of his or her own legal duties
under occupational health and safety legislation. For example, workers in Alberta must take
reasonable care to protect the health and safety of themselves and their coworkers at work, which
includes the obligation to report anything hazardous in the workplace.8
Employers should utilize the website links included at the end of this article in meeting their
obligations.

What if an employee refuses to work due to fear of contracting COVID-19?
Alberta employees generally have a right to refuse work that they reasonably believe to be unsafe.9
This would include working in an environment where they are at a high risk of contracting a serious
illness or disease, such as COVID-19.
When a worker refuses to work for health or safety reasons, he or she must report the refusal and
reasons for it to the employer. The employer is then obligated to conduct an investigation and, if
necessary, take steps to eliminate the danger.10 Determining whether an employee's belief is
"reasonable" may include relying on credible medical information, such as information from the
Public Health Agency of Canada, Alberta Health Services, and WHO.11
Employers are encouraged to exercise prudence, even in cases where work refusals appear patently
unreasonable. For example, certain mental illnesses, such as specific phobias like "germophobia", are
characterized by excessive fear and anxiety, and related behavioural disturbances.12 Workers with
such conditions can have intense fears of contracting contagious diseases and may require
accommodation in the context of COVID-19.
The circumstances surrounding the spread of COVID-19 also present an increased risk of workplace
harassment.13 Alberta employers are legally obligated to make reasonable efforts to address, and
employees must refrain from causing or participating in, harassment in the workplace.14 Harassment
includes disparaging comments about a person’s race, ancestry, or place of origin.15
What if an employee recently returned from or is planning to travel to a high-risk region?
Employers generally do not have control over how workers spend their scheduled vacation or holiday
time; however, employers should encourage workers to reschedule personal travel to high-risk
regions for the foreseeable future. If a worker is scheduled to travel to an affected area for work,
alternatives should be considered, such as the use of teleconferences or virtual meetings instead of
in-person meetings. Employers can keep up to date on travel advisories by visiting the Global Affairs
Canada website.16
Care must be taken when dealing with an employee who has recently returned from an affected
area. On the one hand, the employer has an obligation to ensure the health and safety of its workers;
but the employer must not act in a way that is discriminatory, violates privacy legislation, or
otherwise breaches a worker's rights. Employers are encouraged to meet with workers who have
recently returned from an affected area to determine whether they are experiencing respiratory
symptoms such as headache, cough, sore throat, fever, or shortness of breath. If the employer
decides to put an employee on leave to safeguard the workplace, it is recommended such leave be
paid unless the Alberta or Federal Government has required the worker's quarantine, in which case
the worker may have access to sickness benefits under the Employment Insurance Act.17 The
employer should ask the worker to provide medical documentation before returning to work if
appropriate.
To determine whether an employee is sick or might have contracted a communicable disease, the
employer will likely need to collect medical information, and should be cautious in doing so.
Collection of a worker's medical information typically involves at least the following:
       explaining to the worker the purpose for which the information is collected;
       providing the name and position of a person who is able to answer the worker’s questions
        about the collection;
       obtaining the worker's consent to the collection, use, or disclosure of that information;
       following up on any information received if further details are required (which may require
        additional consent from the worker); and

       following up with the worker if the information is not provided.18
Employers may disclose personal information only for purposes that are reasonable and only to the
extent necessary for meeting the purposes for which the information is disclosed.19 Generally,
safeguarding the workplace does not include disclosing a worker's private information to other
workers.
Workplace leaves
Employers may see a rise in leave requests, whether to take care of a worker's own health or the
health of a family member. Workers may be entitled to paid or unpaid leaves under applicable
employment contracts or collective agreements. In addition, the following minimum standards apply
in Alberta:
 Provincially regulated workplace                       Federally regulated workplace
 Long-term illness and injury leave (unpaid)20          Medical leave (unpaid)21
            up to 16 weeks per calendar year                  up to 17 weeks per calendar year
            must provide notice ASAP                          must provide 4 weeks' notice unless
            must provide medical certificate                   valid reason why 4 weeks cannot be
            must have at least 90 days' service                given
                                                               must provide medical certificate if
                                                                absence 3 days or longer
 Compassionate care leave (unpaid)22                    Compassionate care leave (unpaid)23
            up to 27 weeks per calendar year                  up to 28 weeks per calendar year
            must give 2 weeks' notice                         must give notice ASAP
            must provide medical certificate                  must provide medical certificate
            must have at least 90 days' service
 Critical illness of family leave (unpaid)24            Critical illness of family leave (unpaid)25
            up to 36 weeks per calendar year if               up to 37 weeks per calendar year if
             family member under 18; 16 weeks if                family member under 18; 17 weeks if
             over 18                                            over 18
            must give 2 weeks' notice                         must give notice ASAP
            must provide medical certificate
            must have at least 90 days' service
 Personal and family responsibility leave               Personal and family responsibility leave
 (unpaid)26                                             (paid/unpaid)27
            up to 5 days per calendar year                    up to 5 days per calendar year
            must give notice ASAP                             if at least 3 months' service, first 3 days
            no proof required                                  paid; if not, all unpaid
            must have at least 90 days' service               must give notice ASAP

Generally, an employer cannot dismiss or lay off an employee who is on any of the leaves described
above.28
Employees affected by COVID-19 may also qualify for Employment Insurance sickness benefits.
During the outbreak of Severe Acute Respiratory Syndrome (SARS), for example, Human Resources

Development Canada amended the Employment Insurance Regulations to respond to SARS-related
claims.29 A medical certificate was no longer required, and the two-week waiting period was waived,
for workers who had received a recommendation from a public health official and were asked by
their employer to self-quarantine. The law remains the same today and would likely apply to
situations involving COVID-19.
Duty to accommodate
An employee who has contracted COVID-19, or who an employer suspects may have contracted
COVID-19, may be deemed to have a disability entitling him or her to workplace accommodation. For
example, in the early 2000s, the Ontario Human Rights Commission classified SARS as a disability,
which meant Ontario employers had a duty to accommodate employees with SARS or who were
exposed to SARS.30
While a "transient illness" such as the common cold or flu will not ordinarily constitute a disability
under relevant human rights legislation, use of sick leave may demonstrate a frailty of health which
can result in a disability.31 As such, employers are advised to accommodate workers they believe may
have been exposed to an infectious disease like COVID-19.
Takeaways for Alberta employers
          Respond to symptomatic workers discreetly and in a non-discriminatory manner
          Maintain a safe and healthy workplace by sending sick workers home, encouraging workers
           to maintain proper hygiene, and cleaning frequently touched surfaces
          Update relevant policies and, if not already in place, consider developing a communicable
           illness policy and business continuity plan
          Designate an individual or team to monitor COVID-19 in the workplace, communicate with
           workers, and coordinate prevention efforts
          Encourage employees to regularly consult the following websites:
                ˗ World Health Organization
                ˗ Public Health Agency of Canada
                ˗ Government of Canada Travel Health Notices
                ˗ Alberta Health
                ˗ Alberta Health Services
                ˗ Alberta Occupational Health and Safety
                ˗ Alberta Health Link: employees can call Health Link (811 or 1-866-408-5465) if they
                    have questions about their health
This bulletin is intended as general information only and is not to be taken as legal advice. If you have
any questions please contact any member of our Employment Group.

1 World Health Organization, "Coronavirus disease 2019 (COVID 19) Situation Report - 49" (9 Mar 2020), online: World Health Organization
; Public Health
Agency of Canada, "Coronavirus disease (COVID-19): Outbreak update" (last modified 9 Mar 2020), online: Public Health Agency of Canada
.
2 See e.g. Occupational Health and Safety Act, SA 2017, c O-2.1 [OHSA], ss 3(1)(a)(i)-(ii); Canada Labour Code, RSC 1985, c L-2 [CLC], s 122.1;

Occupiers' Liability Act, RSA 2000, c O-4 [OLA], s 5; and Criminal Code, RSC 1985, c C-46, s 217.1.
3 OHSA, CLC, supra.
4
  OHSA, supra s 2; CLC, supra ss 122.1-122.2, 124-125.
5 See e.g. OHSA, supra ss 2-3, 19; CLC, supra, ss 122.2, 125(1)(z.03)-(z.04).
6 See Alberta Health Services, "novel coronavirus (COVID-19)" (last modified 8 Mar 2020), online: Alberta Health Services

; Public Health Agency of Canada, "Coronavirus disease (COVID-19): Prevention
and risks" (last modified 9 Mar 2020), online: Public Health Agency of Canada .
7 See e.g. OHSA, supra s 14(1); CLC, supra ss 125(1)(q), (s).

8
  OHSA, supra ss 3(1)(b), 5(a); CLC, supra ss 125(1)(d)-(f), 126(1)(c), (g).
9 OHSA, supra s 31(1); CLC, supra s 128(1).
10 OHSA, supra ss 31(2)-(6); CLC, supra ss 128(6)-(16).
11 See e.g. Caverly v Canada (Human Resources Development), [2005] CLCAOD No 10, 2005 CarswellNat 7856 (Can Lab Code App O) at paras

25-33.
12 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (Arlington: American Psychiatric

Association, 2013) at 189, 197-202.
13
   See e.g. Shanifa Nasser, "Racism 'still very much alive' in Canada as stereotypes around coronavirus spread, some warn", CBC News (last
modified 1 Feb 2020), online: .
14 OHSA, supra ss 3(1)(c), 5(d).
15 See OHSA, supra s 1(q); Alberta Human Rights Act, RSA 2000, c A-25.5, s 7; Canadian Human Rights Act, RSC 1985, c H-6, ss 7, 14(1)(c).
16
   See Global Affairs Canada, "Travel Advice and Advisories", online: Global Affairs Canada .
17 SC 1996, c 23; Employment Insurance Regulations, SOR/96-332, ss 40(1.1), (7).
18
   See Personal Information Protection Act, SA 2003, c P-6.5 [PIPA], ss 7(1), 13(1)(a)-(b); Personal Information Protection and Electronic
Documents Act, SC 2000 c 5 [PIPEDA], ss 5(1), sch 1, principles 4.2-4.3.
19 See PIPA, supra s 19; OHSA, supra s14(1); PIPEDA, supra s 5(1), sch 1; CLC, supra ss 125(1)(q), (s);
20 Employment Standards Code, RSA 2000, c E-9 [ESC], ss 53.97-53.974.
21 CLC, supra s 239; Canada Labour Standards Regulations, CRC, c 986 [CLSR], s 29
22
   ESC, supra ss 53.9-53.94.
23 CLC, supra ss 206.3, 207.01-207.02, 207.1, 207.3, 209-209.3; CLSR, s 29.
24 ESC, supra ss 53.96; Employment Standards Regulation, Alta Reg 14/1997 [ESR], s 53.96.
25 CLC, supra ss 206.4, 207.01-207.02, 207.1, 207.3, 209-209.3; CLSR, s 29.
26
   ESC, supra s 53.982.
27
   CLC, supra ss 206.6, 207.3(1)-(2), 209.3(2); CLSR, supra ss 6(7)(d), 17, 29.
28 ESC, supra ss 53.971(1) and 53.985; CLC, supra ss 239(6).
29 Employment Insurance Regulations, SOR/96-332 ss 40(1.1), (7); Regulations Amending the Employment Insurance Regulations, PC 2003-

474, (2003) C Gaz II, 1219-22.
30
   Ontario Human Rights Commission, "Commission urges tolerance and respect during the SARS health emergency"
 3 April 2003 (accessed
2020-02-13).
31 Syncrude Canada Ltd v Saunders, 2015 ABQB 237 at para 58.