Canadian HR Reporter

34 www.hrreporter.com S P O N S O R E D in regular contact with the general public. A worker will also likely be covered in the event of a widespread outbreak at their place of work." Similarly, in Ontario, the Workplace Safety and Insurance Board (WSIB) has indicated that it will assess whether the nature of the employee's employment created a risk of contracting the disease to which the public at large is not normally exposed. While a COVID- 19-related claim may be compensable, the WSIB indicates the costs associated with such a claim will not be allocated at the employer or class level and instead will be allocated on a schedule-wise basis. This means there may be an increased potential for COVID-19- related cost increases even where an employer has not had a claim filed in its workplace. It remains to be seen whether other provincial workers' compensation bodies will take a similar approach. Legal risks associated with layoffs The risk of constructive dismissal: Employment standards legislation across Canada recognizes an employer's right to temporarily lay off an employee for a prescribed period of time, following which the layoff is deemed to be a termination of employment. Despite the statutory entitlement, courts have held that unless an employment contract or other agreement includes an express or implied right to lay off an employee, an employer has no right to do so. If there is no express or implied right, a layoff may, in certain circumstances, amount to a unilateral, in a private (appropriately distanced) setting, advise they may have been in contact with someone in the workplace with a presumptive or confirmed case of COVID-19, and require them to self-isolate and monitor their symptoms for a period of 14 days. Workplace safety and insurance: In the normal course, if an employee is diagnosed with an infectious disease as a result of workplace exposure, the employee may be entitled to benefits through the respective workers' compensation scheme. This may result in increased claim costs for an employer. In the case of COVID-19, the source of the transmission may be difficult to determine. The question employers have asked is: "Will this lack of precision make it more difficult for an employee to demonstrate they are eligible to receive benefits?" Thus far, the answer appears to be no. To the contrary, workplace safety and insurance adjudicators appear to have relaxed the standard, so that now an employee need only demonstrate that the employee's working environment put them at increased risk of contracting the disease as compared to members of the general public. If established, this will generally be considered persuasive evidence that the employee's employment made a significant contribution to the illness. For example, in Alberta, the Workers' Compensation Board has indicated a "claim is likely to be accepted if an employee contracts the illness and is performing work the province deems to be an 'essential service' that puts them These are unprecedented times, so it is important for employers to plan deliberately and proceed with caution, say Priya Sarin and Matthew Badrov of Sherrard Kuzz, in looking at the enhanced liability around safety and the legal risks associated with layoffs MANAGING WORKPLACE RISK DURING COVID-19 PANDEMIC In the normal course, if an employee is diagnosed with an infectious disease as a result of workplace exposure, they may be entitled to workers' compensation benefits. a matter of weeks, the employment landscape for employers across the country has changed dramatically. Many have been forced to institute temporary layoffs and work-from-home arrangements as Canadians are encouraged to self-isolate and, in many jurisdictions, non-essential businesses have been required to close. In these unprecedented times, employers are grappling with a variety of issues. This article addresses two key issues: enhanced employer liability that may arise out of the spread of COVID-19 in the workplace; and the legal risks associated with laying off employees and best practices to minimize those risks. Employer liability concerns Health and safety: Across Canada, an employer has an obligation under provincial occupational health and safety or workplace safety and insurance legislation to take all reasonable precautions to protect the health and safety of a worker in the workplace. Taking those precautions may not wholly prevent COVID-19 transmission in its workplace. However, it will reduce the risk to others and the chances of a successful complaint the employer failed to comply with its health and safety obligations. In the case of COVID-19, the source of transmission may be difficult to determine, particularly in light of community spread. However, if there is an employee in the workplace with a presumptive or confirmed case of COVID-19, the employer should take proactive steps to minimize risk to co-workers. Aside from appropriate hygiene protocols, this includes investigating with whom in the workplace the ill employee had close contact two to three days prior to symptoms becoming apparent (this is the period within which medical professionals believe pre-symptomatic transmission is most likely). This investigation is often referred to as "contact tracing". Once the employer has identified those co-workers, the employer should speak to them Matthew Badrov Lawyer at Sherrard Kuzz Priya Sarin Lawyer at Sherrard Kuzz E M P L O Y M E N T L AW IN

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