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Navigating Use of Employee Sick Time During a Pandemic

At the time of writing, more than 1,600 people have died in Canada due to COVID-19. The total number of confirmed cases is over 35,000. Given the magnitude and the seriousness of COVID-19, it was astonishing to read about an 18 year old girl from Hamilton, Ontario, who forged a medical note from her doctor stating she had tested positive for the virus. Not only did this excuse the young woman from attending work, it led to the closure of the McDonald’s location where she worked as well as hundreds of wasted hours and resources by officials at the Hamilton Public Health Services, Public Health Ontario, and the police. As one constable put it “She just didn’t want to go to work.”

I want to provide some much needed levity at this time and write a blog entitled “You know you can always just quit, right?” But, that’s not why you read our blogs. Plus, the employee in question likely wanted to take advantage of a job-protected leave and CERB benefits, which she may not have been entitled to had she quit.

This story raises interesting issues for employers who are trying to manage their resources and workforce through this already difficult time.

As we have previously reported, on March 23, 2020 the B.C. Government passed the Employment Standards Amendment Act (No. 2), 2020, to bring in job protected leave for employees unable to work due to COVID-19. According to the legislation, employees may take unpaid leave for several reasons in relation to COVID-19, including if they have been diagnosed with COVID-19 or are in quarantine or self-isolation in accordance with the directions or order of the provincial health officer, and are complying with advice from medical professionals. Employees can take this job-protected leave as long as they need it, without putting their job at risk. Employers can request reasonably sufficient proof from the employee that they are eligible for COVID-19 related leave. However, they cannot ask the employee to provide a medical note. The province has stated that once this protection is no longer necessary then this leave will be removed from the Employment Standards Act.

Additionally, three days of unpaid sick leave has been added to the Employment Standards Act, which will remain in place even after the pandemic has passed.

There may be employees who exhibit symptoms in the workplace that cause their employers concern. It is allergy season after all and employees may cough, sneeze or complain of headaches. Should anything cause you serious concern, remember that it is your workplace and you have a duty to maintain a safe workplace. Employers have a right to require confirmation from their employees of fitness to be at work if there is a reasonable basis for concern.

On a related issue, a few of our employer clients have asked if a diagnosis of COVID-19 would be considered a disability which requires accommodation in the workplace. As you likely know, accommodation can include a lengthy absence from work. Although this matter has yet to be considered by the Human Rights Tribunal, the BC Human Rights Commissioner stated “In this time of rapidly changing circumstances, neither the Human Rights Tribunal nor the courts have had time to weigh in on whether COVID-19 amounts to a disability. However, in my view as BC’s Human Rights Commissioner, it does.”

As this situation continues to evolve, we will continue to update you with the latest information and legislative changes. In the meantime, please do not hesitate to contact any member of our Labour, Employment & Human Rights Group to help navigate you through this difficult time.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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