employer obligations

Employer obligations to staff during COVID-19 crisis

Tuesday, March 31, 2020
By Cheryll Wood

The obligations that condominium corporations have as employers are one of many concerns related to COVID-19. Here are some frequent questions regarding this matter and advice on how best to address the issues.

Q: What are the obligations of condominium corporations as employers during the COVID-19 pandemic?

Employers, including condominium corporations, have an obligation under the Occupational Health and Safety Act to take precautions for the protection of a worker. This means condominium corporations need to protect employees from the risk of transmission of COVID-19, communicate hazards and train employees.

With condominium corporations, the number of employees is often small. In some cases condominiums only employ one person [separate and apart from any contractors that the corporation may rely on]. This will of course impact the steps taken and the protocols put in place. However, the board of directors should be closely monitoring their municipal public health websites, Ontario Public Health, and should also be following the recommendations provided.

There are a few key steps that corporations can take to help ensure the safety of their employee(s). If it has not already done so, the corporation should implement a COVID-19 plan. This plan should address:

  • Decisions being made based on public health recommendations.
  • Education on preventing infections.
  • Information the employer will be asking, such as, are you exhibiting any symptoms of the illness? Have you come into close personal contact with anyone who’s exhibiting any of the symptoms? Have you traveled to an affected area? Have you been in close personal contact with anyone who has traveled to an affected area?
  • If an employee is showing symptoms of COVID-19 or has been in contact with someone diagnosed with COVID-19, the employee should be asked to work remotely or to not attend at their place of work– following recommendations from public health.
  • Steps being taken to promote social distancing in the workplace, including notices to owners and residents.

Even if the corporation does not have a plan at this time, it is important to put one in place in order to rely on it going forward and amend it as necessary.

  • Permit and encourage all workers who can work remotely to do so. The employer can take steps to assist employees in getting a remote office space set up. While this is not an option for superintendents, it may be an option for office staff.
  • Ensure that workers who have returned from travel self-isolate as required for 14 days before returning to work.
  • Have additional cleaning supplies and personal protective equipment (i.e. masks, gloves, antibacterial wipes, etc.) on site to ensure protection of workers who must come to work.
  • Any cases of COVID-19 in the workplace must be reported to the Ministry of Labour.

Ensuring the safety of employees is paramount. If an employee believes that possible workplace exposure to COVID-19 will endanger them, they can refuse to work. The employer will then need to investigate any workplace refusal. If an employee refuses work, it can be very time consuming and complicated. If this happens, reach out to counsel to discuss specific obligations and responses of the condominium corporation.

Q: With the state of emergency being declared, do we have a right to insist that our employees come to work?

Yes, provided the service being provided by the employee is considered an essential service..

The state of emergency, called pursuant to the Emergency Management and Civil Protection Act, allows the Ontario government to implement temporary measures to ensure safety and security during national emergencies and to amend other Acts, if necessary.

The Ontario government has relied upon its new powers to prohibit all organized gatherings of five people or more. It has also mandated the closure of recreation centres, public libraries, private schools, day cares, bars, restaurants, theatres, concert venues, cinemas and all other non-essential workplaces. There are some exceptions for takeout/delivery restaurants. However, with respect to services that relate to condominiums, most, if not all, services related to the essential operation of the condominium were deemed essential. These include, but are not limited to, the following specific services:

  • Property management services (although a focus on providing services remotely should be prioritized);
  • Building superintendents;
  • Custodial/janitorial services (including cleaning staff, private garbage and recycling removal);
  • Landscaping services limited to essential services required to maintain the property (like grass cutting, necessary regrading, etc.), but not upgrades like new tree planting or new fencing if the existing fence is functional;
  • Security services (including private security guards); and
  • Concierge services (which play a role in building security, safety and maintenance).

An employee performing one of the above-noted services will most likely be required to continue working. This means that Ontario employers providing essential services are able to continue to operate and implement policies and procedures that work for the business.

Small employers, including condominium corporations, should continue to monitor public health recommendations. Currently, there is a recommendation that all workers who are able to work from home, should do so. As noted above, condominium corporations should be implementing a COVID-19 policy that sets out the steps that will be taken at this time.

Q: Do we have to pay our employees if they are in self-isolation?

It will depend on the employment contract and the Employment Standards Act (ESA). Employers should look to the employees’ specific contracts and ESA to determine their obligations.

The government has announced various measures to assist Canadians without sick leave who are impacted by COVID-19. This includes waiving the one-week waiting period for EI. Other measures include:

  • Waiving the requirement to provide a medical certificate to access EI sickness benefits.
  • An Emergency Care Benefit providing up to $900 bi-weekly, for up to 15 weeks. This flat-payment benefit would be administered through the Canada Revenue Agency (CRA) and provide income support to:
  1. Workers, including the self-employed, who are quarantined or sick with COVID-19, but do not qualify for EI sickness benefits
  2. Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent, but do not quality for EI sickness benefits.
  3. Parents with children who require care or supervision due to school closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.

Some condominium corporations may review the circumstances of employees and make a decision to extend paid sick leave benefits for time spent in self-isolation or quarantine. This is a decision for individual condominium corporations to make.

Q: Can we ask for a doctor’s note?

No. The Ontario government introduced legislation for the protection of Ontario workers on March 19, 2020. This legislation protects the jobs of employees who self-isolate or quarantine and those that need to care for others as a result of illness or school/care facility closures.

As part of this legislation, an employee is not required to provide a medical note if they need to take leave. However, an employer can ask for other information/evidence reasonable in the circumstances at a tie reasonable in the circumstances. This information could include for example flight information confirming that the employee was out of the country and therefore required to self-isolate.

Q: Are there other comments and suggestions for condominium boards surrounding these issues?

Communicate regularly with any employees about the situation and provide updates as circumstances change. Ensure that you communicate social distancing protocols for your employees. Keep an eye out for any changes as new legislation is being drafted to address the impact of COVID-19 on businesses and employees. Keep in mind that a request for accommodation from an employee during this time should be given consideration and the condominium corporation should be mindful of its obligations under the Human Rights Code.

Cheryll Wood is an associate at Davidson Houle Allen LLP, and has been practicing condominium law for seven years. She represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.

The above has been updated and edited from the originally published article on March 18, 2020, on the Davidson Houle Allen LLP website.

 

1 thought on “Employer obligations to staff during COVID-19 crisis

  1. Hello, My friend is an employee who is on salary at a gas bar in Winnipeg. We are wondering if she is eligable for any extra pay due to this pandemic, and her risk in dealing with heavy traffic in a small confined area. Thank you.

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