There is a general duty on all employers to take all reasonable precautions to prevent harm to employees in the workplace. Employers should have a detailed plan in place to deal with this pandemic and specific protocols, including providing personal protective equipment for workers and the necessary training to use and dispose of that equipment. The approach must be proactive and focus on the protection of the worker.
Under health and safety legislation, employees have the right to refuse dangerous work. Workplace health and safety committees have a legal right to participate in the development of any workplace prevention and preparation strategies dealing with the virus.
For more information, consult the Canadian Centre for Occupational Health & Safety.
For any questions or concerns about your health and safety at work, do not hesitate to contact us at info@pafso.com
The federal government has agreed to our demand to use “other leave with pay” rather than force our members to use sick leave. Treasury Board has said:
Employees that are required by public health officials to self-isolate, if in good health and able to work, will be asked to discuss with their managers the option to telework. If that is not possible, the employees will be granted “other leave with pay (6990 code)” as per their collective agreements.
In the event that your collective agreement does not provide alternatives to sick leave as mentioned above and your employer is refusing to grant you paid leave, you are entitled to take sick leave if you are quarantined. Refer to your collective agreement for details.
If you do not have any (or not enough) paid sick leave, you can take unpaid job-protected leave. The Canada Labour Code provides up to 17 weeks of job-protected medical leave. Many provinces have such leave under their employment standards legislation. You can claim Employment Insurance (EI) benefits for periods off work due to illness if your employer doesn’t pay for your sick leave. The Liberal government has recently announced a change to the rules for Employment Insurance (EI) so that workers affected do not have to serve the waiting period to claim EI sick benefits, as well as other measures to help employers and employees. For more information, visit Government of Canada takes action on COVID-19.
If you contract coronavirus at work, you may be able to file a claim for workers compensation benefits. These types of claims were made by healthcare workers during the SARS outbreak. For more information, please contact us at info@pafso.com
The union is urging all employers to be flexible in allowing employees to take paid and unpaid leaves or to allow employees to work from home if possible.
PAFSO has urged the Employer to allow telework wherever possible and Treasury Board has now committed to being “as flexible as possible” in granting leave and other provisions for our members. They have issued the following statement:
Managers are to consider telework for all employees, at all work sites, and identify an approach that is flexible while ensuring continued critical government operations and services to Canadians.
Federal organizations must identify and determine how to manage through exceptional situations that do not lend themselves to telework such as: critical services requiring on-site presence; security limitations; other operational imperatives where there are no alternatives.
However, if you are ill, you should not have to work, but instead have the right to take sick leave.
In workplaces where telework is not possible, the employer must either allow you to take leave for quarantine or illness and take all necessary measures to ensure that your workplace is healthy and safe in accordance with health and safety legislation.
As well, COVID-19 may be considered a “disability” under human rights legislation, which would then require employers to accommodate you to the point of “undue hardship”. For more information, contact the Canadian Human Rights Commission or contact us at info@pafso.com
As of November 9, 2020, the Treasury Board’s Policy on 699 was amended for employees who are facing caregiving challenges resulting from school or daycare closure. Employees are encouraged, as a primary step, to make alternate arrangements, such as flexible hours of work, with their manager. If no flexible arrangement is feasible, employees are required to use paid leave options under the collective agreement and will have to take all leave credits under the family-related and vacation provisions before requesting “Other Leave with Pay” under 699. It is generally expected that you will continue to work some hours during the week if you are granted leave under 699.
Your collective agreement contains provisions for family-related leave. Refer to your collective agreement to determine your entitlements. As well, the Canada Labour Code and employment standards legislation in many provinces and territories contain provisions for job-protected family responsibility leave. If the illness becomes serious, you may also claim benefits for Compassionate Care Leave under your collective agreement and Employment Insurance.
If you are required to take care of a family member with the virus who is a dependent and you have made reasonable efforts to self-accommodate, the employer may be required to accommodate you up to the point of undue hardship (i.e., flexible work schedule, reduced hour, a different work schedule etc. …). The usual obligations on the employer on the duty to accommodate apply.
For government employees: contact the 24–7 Employee Assistance Program (EAP) or your departmental coordinator, access care through the Public Service Healthcare Plan (PSHP), or use the nationwide Specialized Organizational Services (SOS).
You can also check out Treasury Board of Canada’s fact sheet for more resources on mental health.
If you face discrimination as a result of:
- having to be in quarantine due to real or perceived illness or disability
- being out of the workplace due to illness or taking care of a sick family member
- being stereotyped or harassed because of your race or ethnic origin, or any other negative treatment due to a ground of discrimination under human rights legislation
you should immediately contact us about the possibility of filing a grievance and/or human rights complaint.
Members of Asian communities in Canada and around the world have been facing racism and discrimination as a result of misinformation and stereotypes about the communities perceived to be associated with the virus. We want to remind everyone that fear or confusion about this virus should never lead to stereotyping or negative comments or actions towards people because of their race, ethnicity, or place of origin.
Collective agreement provisions and health and safety legislation in all jurisdictions in Canada require employers to provide a healthy and safe environment for employees.
Under health and safety legislation, employees have the right to refuse dangerous work. This would include refusing work due to hazard related to the COVID-19 pandemic if the worker believes there is a hazard, their concern is communicated to a manager and the seriousness of the perceived danger justifies the risk.
Although the current pandemic has caused justifiable fear and anxiety amongst workers about their health, fear alone of a potential exposure will not be an adequate reason to refuse work.
Whether the work refusal is justified will depend on the facts and the measures taken by the employer to protect health and safety eliminate the potential danger in the workplace.
Some of the measures taken to reduce risk of infection to employees should include:
- Posting signage to alert workers of any signs and symptoms of acute respiratory illness,
- Display posters promoting hand-washing and respiratory hygiene,
- Ensuring tissues and alcohol-based hand rubs are available in bathrooms and other high traffic areas,
- Ensuring social distancing between workspaces,
- Encouraging employees to stay home when they are sick,
- Facilitating teleworking.
You can find valuable resources for businesses and employees on the Public Health Agency of Canada website.
Public health authorities in most provincial jurisdictions have now banned large gatherings and implored people to practice social distancing, telework and avoid all non-essential travel from home. In some jurisdictions (Québec), all external and internal gatherings have been prohibited and persons who do not follow directed quarantine orders of public health officials can be arrested and subject to significant fines.
If your workplace is set up in a way that prevents you from following public health directives and your employer is not taking reasonable measures to protect you, this may be sufficient reason to justify a work refusal on the ground that the workplace is a hazard.
Refusing to work in defiance of an employer directive is insubordination. The consequences could therefore be discipline.
However, if the refusal is deemed to be justified, the discipline could eventually be overturned by an arbitrator if a grievance is filed.
If you are considering a work refusal, be sure to contact your local health and safety representative as information from public health authorities about the relative risk posed by the virus in any given region or workplace continues to evolve.
- Voice your concerns with your supervisor;
- Contact us at info@pafso.com;
- If you have available leave, consider taking any personal leave to give you time to discuss the issue with us before going into work; or
- Let us know if the employer is failing to put measures in place to protect workers’ health and safety (i.e., hand sanitizer, social distancing, telework).
In normal circumstances, employers do not have a right to know an employee’s diagnosis.
With the ongoing national effort to flatten the curve of the pandemic, employers who require employees to self-disclose would likely be deemed to be in compliance with their obligation to provide a healthy and safe environment for all employees.
In these circumstances, if someone in the workplace was known to have contracted COVID-19, an employer would be directed by public health authorities to inform the persons who had the most direct contact with the individual. Employer’s rights would be limited to disclosing the information to those that need to know it.
Under legislation such as the federal Quarantine Act or emergency measures and public health legislation in provincial and territorial jurisdictions, public health authorities may direct employers to disclose personal health information to them about persons in the workplace who have tested positive or been directly exposed to persons who have tested positive for COVID-19 in order to reduce the propagation of the disease.
However, employers would still have an obligation to protect workers’ privacy rights and would not be allowed to share an individual worker’s personal health information with other workers who do not need to know the information.
For more information, please refer to the Office of Privacy Commissioner’s guidance on the application of Privacy Act and PIPEDA. You can also refer to your respective provincial privacy rights.
In March 2020, the Ontario government passed legislation Bill-186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which provides that an employee will not be required to provide a medical note if they need to take a leave related to COVID-19. Similarly, an employee would not be required to provide medical documentation upon return to work if they have had COVID-19.
In Quebec, the CNESST advise workers not to go to hospitals or medical clinics if they are not sick.
The Canadian Medical Association has called for the discontinuation of all medical notes in all jurisdictions during the COVID-19 crisis as this puts an unnecessary burden on the health care system.
However, if the employer has reasonable cause to believe based on consistent information that you may not be fit to return to work and may pose a risk to the health and safety of other employees, it may ask for additional medical documentation confirming your fitness to return to the workplace. This would be pursuant to the employer’s obligation to provide a healthy and safe environment for all workers under applicable health and safety legislation and the collective agreement.
The request for information should be limited to what is necessary to make the determination regarding your functional limitations but should exclude any information identifying a disability.
The employer may not unreasonably deny you the ability to return to work if it is relying on impressionistic or discriminatory information. In fact, doing so could constitute discrimination on the basis of perceived disability. This arbitrary action on the part of the employer could be grieved and an arbitrator could eventually require an employer to reimburse you for any leave or income lost as well as damages for pain and suffering.
Public health authorities are currently not conducting any random testing for COVID-19. Testing is only being conducted in limited circumstances.
Therefore, unless you have been directed by a public health authority to submit to testing or there is a reasonable cause to question your fitness to work (i.e., due to COVID-19 symptoms exhibited), the employer would have no basis to ask or require that you be subject to an assessment and testing by public health authorities.
If you willfully refuse to self-disclose a highly contagious disease such as COVID-19, this could be in violation of health and safety legislation requiring employees to disclose workplace hazards as well as directives from public health authorities.
Discipline could result due to the significant health and safety risk you could pose to other workers. Further, it is likely that an arbitrator would find some measure of discipline to be reasonable. The fact that you intentionally refused to disclose would be an aggravating factor.
The COVID-19 crisis and the subsequent closing down of many non-essential services in most provinces and territories has led to an increase in telework but also a significant reduction in hours of work for members. In some cases, employers (non-TBS) have begun the process of laying off workers.
If you are unable to do your job from home and you have not been deemed an essential or critical worker, collective agreement provisions on job security, obligations to consult the union and layoff provisions should be consulted. Contact your union representative for assistance.
Ultimately, there is no obligation to continue to employ you if are not working or there is no work for you to do because of the impact of COVID-19.
In addition, it is not discriminatory to lay you off if there is no work for you to do.
PAFSO is advocating to ensure workers who cannot work due to the temporary COVID-19 shutdown are guaranteed income security and job protection during this period and that recall rights are respected when the crisis ends.
In February of 2021, the Government of Canada introduced new temporary travel measures requiring travellers to reserve a 3-night stay at a government-authorized hotel at the first port of landing while awaiting the results of COVID-19 tests taken upon their arrival. (Details on the measure and Q&As are available at: https://travel.gc.ca/travel-covid/travel-restrictions/flying-canada-checklist.)
In March of that same year, it was announced that Foreign Service Officers returning to Canada under FSDs 50 and 51, among others, can get reimbursed for expenses related to this 3-night stay.
Admissible expenses will be reimbursed to maximum of $2,000 per person, not exceeding $10,000 per family. Such expenses would include accommodation and related fees at the government-authorized hotels, transportation to and from the airport and hotel (if required) and meals. Reimbursement will be made based on actual expenses, so receipts must be retained for all expenses.
Please note that the current measure may be subject to change as the pandemic situation evolves. FSD Client Advisors should be your first point of contact for all questions related to travel and coverage of expenses.
While many employees have the necessary tools to work remotely, you may find you require additional equipment. Speak to your supervisor and union rep about it and try to resolve situation keeping in mind that what is reasonable in the office may not be in a temporary mandatory telework arrangement during a pandemic. Also, the employer may be required to provide you with a different but reasonable accommodation so that you are able to continue to telework.
As an example, Treasury Board has issued some guidelines for managers on how address requests for additional equipment. As a general framework, all requests are subject to departmental adaptation and approval. Who departments choose to equip will depend on the nature of the different types of work undertaken by employees, including their relative level of criticality, and the characteristics of their workforce, including employment status and location. However, departments need to consider, as a priority, equipping to satisfy duty-to-accommodate obligations; and occupational health and safety requirements.
The collective agreement provides for management rights, but those rights are not unlimited. They include the right to supervise and monitor your work. Every case is unique and management rights must be assessed to determine whether they are exercised reasonably or unreasonably. For instance, if your manager has no legitimate reason to impose this condition, you could challenge it, particularly during this pandemic, which is a very stressful time for all employees. If a measure seems excessive and unreasonable, first discuss the issue with your supervisor or your union representative.
Normally, the tools you use at work, including your computer and the network, belong to your employer. Treasury Board has a Policy on Acceptable Network and Device Use which applies to federal public service employers.
The labour board (FPSLREB) has confirmed that there should be no expectation of privacy when communicating electronically at work on the employer’s system.
Your employer could therefore monitor your compliance with the policy and acceptable use of its system, which includes accessing your mailbox when you are on leave and the work must go on.
The employer could also conduct an internal investigation to check whether your use of the equipment is acceptable. However, accessing your mailbox without just cause, simply to harass you, may potentially be an abuse of the power extended to management in the collective agreement and a violation of employer policy.
If your family obligations meet the threshold for family status protection under human rights legislation, you could be entitled to accommodation to the point of undue hardship. You could also be entitled to alternative scheduling like reduced hours, variable schedule, etc.
Please note that all family-related obligations do not meet the threshold of human rights protection on the basis of family status.
If you are no longer able to work, you could also be entitled to EI or the Canada Emergency Response Benefit (CERB).
Speak to your supervisor and union rep about it and try to resolve situation keeping in mind that what is reasonable in the office may not be in a temporary mandatory telework arrangement during a pandemic. Also, the employer may be required to provide you with a different but reasonable accommodation so that you are able to continue to telework.
Most Boards, Tribunals and Human Rights Commission have now temporarily suspended all in-person meetings, including mediation and hearings.
With respect to private sector arbitration, decisions are being made to find alternative ways to address ongoing disputes on a case-by-case basis.
Even if your grievance does not relate to the COVID-19 situation, grievances can be filed electronically or by other means that have been mutually agreed to by the union and the employer.
If you think the union should be filing an unfair labour practice complaint, get in touch with us.