COVID-19: KNOW YOUR RIGHTS

COVID-19:  KNOW YOUR RIGHTS

CUPE NATIONAL GUIDANCE ON COVID-19

These guidelines have been amended for non-union workers. CUPE members will have the added protection of Collective Agreement language and the support of CUPE to ensure employers follow H&S laws as well as pressure them to pay workers when they are aid off, quarantined or self isolating.

What are my employer’s obligations to provide me with personal protective equipment (“PPE”) to protect me against exposure to COVID-19?

Employers have a duty under the Occupational Health and Safety Act and Canada Labour Code to provide PPE and ensure it is maintained in good condition. PPE is appropriate where providing it would increase the safety of employees by more than a minimal amount. Locals should review their workplaces and provide recommendations about what, if any, additional PPE will increase member safety.

Health and Safety (H and S) committees should be engaged to ensure employers provide appropriate PPE and that it is maintained in good condition. If an employer does not provide appropriate PPE, members should inform their H and S representative.

Members have a statutory right to refuse unsafe work and a summary of this right is provided further below.

Can my employer order me to attend or be available for work even though I have just returned from another country?

As of now, self-isolating for fourteen (14) days after returning from a foreign country is only “advice” from public health authorities, rather than an order under any applicable legislation. This means that an employer could legally order an employee who has recently returned from another country to attend work or be available for work. However, the Health and Safety Committee can and should raise concerns that by doing this the employer is not meeting its obligation to provide a safe and healthy workplace for other employees.

The Ontario Minister of Health announced at a press conference on March 18, 2020 that all “healthcare” workers returning from abroad would be “required” to self-isolate for 14 days. She also stated that this would be “mandatory” however it remains to be seen what form this requirement will take. She stated that some form of “directive” would be “going out shortly.”

I am worried that a client, or someone living/visiting the client, will have COVID-19 and I will be exposed. Can I refuse work on this basis?

The Ontario Occupational Health and Safety Act and the Canada Labour Code provide a right to refuse unsafe work. Both statutes impose a high threshold for risk, and a general fear of exposure to COVID-19 is unlikely to meet the threshold. Work may only be refused where it is “unsafe” or “dangerous”.

The assessment of whether a workplace is “unsafe” or “dangerous” varies from workplace to workplace, and must be made on a case-by-case basis. Among the relevant factors will be the member’s occupation and degree of exposure to potentially infected individuals, as well as their specific circumstances. As an example, immune-compromised individuals face a greater risk should they be infected than an average member of the population and thus it is more likely that a risk of exposure might constitute an unsafe workplace for that person.

Employers should be reminded of their obligation to take steps to ensure a safe and healthy workplace. This includes controlling public access to a facility, regular disinfection, provision of appropriate personal protective equipment and communication to employees.

If my employer shuts down because of COVID-19, what are my rights?

An employer shutdown due to COVID-19 is a layoff.

Will I get paid if I am told to self-isolate or self-quarantine?

As a general matter, the law does not entitle employees to be paid in these circumstances.

The federal government has announced that it will be waiving the mandatory one-week waiting period to access Employment Insurance (“EI”) sickness benefits for COVID-19-related claims. Where employees are not able to access other sources of income protection, they should make an immediate claim for EI sickness benefits. The eligibility requirement, to have worked 600 insurable hours during the preceding year remains in place at the time of writing.

Provincial law now provides for a job-protected, but unpaid, leave in the event that an employee is self-isolating or self-quarantining in accordance with the advice of public health authorities or their doctor.

Can my employer tell me not to travel? Am I required to inform my employer if I have travelled outside the country in the last fourteen days?

An employer has the right to restrict work travel, however if employees have incurred costs relating to now-cancelled work travel, they should be reimbursed by their employer just as they would have been had the travel been carried out. This includes, for example, cancellation costs.

Except in extraordinary cases, an employer does not have the right to restrict personal or leisure travel by employees. Different considerations may apply with respect to international travel for critical employees, as the federal government has recommended that Canadians avoid all non-essential international travel, and the risk that employees will be stuck outside of Canada and be unable to return, or unable to return within a reasonable time frame is increasing. Additionally, public health authorities recommend that all individuals returning to Canada after travelling abroad self-quarantine for 14 days.

During the COVID crisis, employers may implement a requirement that you notify them of such travel. If your employer institutes that requirement, employees must comply with it.

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