HR COMPLIANCE: RESPONDING TO PANDEMICS

The swine flu crisis is receding but you can bet that in a couple of years a new international health crisis will emerge that threatens the continuity of your company’s operations. Many of the HR steps companies take in response to outbreaks of infectious disease—be it SARS, West Nile Virus, swine flu or any other contagion—have significant liability implications that tend to get overlooked in the panic of the moment. To ensure that you’re ready for the next crisis, this article will explain the law of infectious disease response measures and how to comply with them. We’ll also explain the HR legal issues that can arise in the midst of your preparation for or response to a health crisis.

WHAT THE LAW REQUIRES

Protecting your employees against the risk of infection is obviously important for business. But is it required by law? In fact, employers do have a legal obligation to guard against the risk of infectious illnesses in their workplace. The duty stems from the OHS laws. But like viruses themselves, the duty isn’t visible to the naked eye. The obligation to prevent swine flu and other infectious disease is an implied one. Explanation: The OHS Act of every province and territory includes a provision referred to as a “general duty clause” that requires employers to furnish a safe and healthy workplace and prevent foreseeable risks that aren’t specifically mentioned in the regulations. Example: Section 25(2)(h) of the Ontario OHS Act requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker.” When outbreaks of infectious diseases occur, the risk of contracting and spreading the disease becomes a foreseeable risk and is thus covered by the general duty clause. In fact, government authorities in at least five jurisdictions have issued guidelines confirming this view in response to the SARS, avian and swine influenza crises. Examples:

• On April 29, 2009, WorkSafe BC issued guidance on the swine flu stating that “employers have a responsibility to protect their workers from all work-related hazards, including exposure to infectious diseases like influenza” and should have an exposure control plan in place;
• ON published emergency guidelines for employer preparedness during the SARS outbreak;
• MB issued Pandemic Influenza Preparedness Guidelines for Manitoba Business in 2006;
• SK issued guidance saying that the obligation to protect employees from swine flu is an implied part of the employer’s duty under OHS laws to “take reasonable precautions to protect the health and safety of their employees in their workplaces” (See http://www.labour.gov.sk.ca/h1n1-influenza-ohs); and
• AB published a Workplace Health and Safety Bulletin stating that employers have legal obligations to take measures to guard against hantavirus, including providing of training (OHS Reg., Sec. 15) and PPE (OHS Code, Part 18), respectively.

What Protective Measures Must Employers Take? What actual measures must employers take to protect employees (and visitors to the workplace) against infectious diseases during an outbreak? Unfortunately, the general duty clause is a lot better at establishing duties than explaining what employers must do to comply with them. Employers in BC, MB, ON and SK have a leg up in determining their compliance obligations. That’s because the government in these provinces have issued guidelines on pandemic influenza preparedness. Officially, these guidelines are only recommendations. But, in the world of OHS compliance, government recommendations are a de facto standard that regulators and courts look to in interpreting what companies are expected to do to manage particular hazards. Moreover, the guidelines of one province often carry influence in other provinces that haven’t issued guidelines of their own. “The provincial Health guidelines didn’t materialize out of thin air,” notes a Vancouver OHS lawyer. “They’re based on the guidance of international organizations such as the World Health Organization and U.S. Centers for Disease Control.” Result: The provincial Ministry of Health guidelines from BC, MB, ON and SK are the closest thing to a national standard of what employers must do to protect against pandemic in the workplace. The Two Legal Obligations Although there are some differences in the details, the provincial preparedness guidelines are remarkably consistent. When you cut through all the verbiage, they call for employers to do two things:

1. Educate their employees; and
2. Take infection control measures.

1. The Duty to Educate Employers must educate employees about the risk of pandemic. General Education: You need to familiarize employees with the nature of the risk posed by the particular illness—what it is, how it can infect them and how to protect themselves. The easiest way to do this is to download and distribute copies of the free materials on swine influenza available on the web including notably from the Public Health Agency of Canada influenza website, your provincial Health Ministry and the World Health Organization. Prevention Measures: The guidelines also say you must acquaint your employees with personal hygiene and other measures for guarding against the risk of infection, including:

• Hand washing;
• “Cough etiquette”;
• Social distancing;
• Proper use of personal protective equipment (PPE);
• Vaccination; and
• Precautions for employees planning to travel to affected areas.

Notification & Communication: Education also involves keeping your employees apprised of recent developments, both public and within your workplace. Employers must provide “clear, timely and proactive communication to staff, including how your organization is handling the situation,” stress the ON Guidelines. This would involve posting information on your company website and/or starting an internal phone service that workers can call for information. Also post the location of hospitals, clinics, public health authorities and other health resources in your community. In addition, you need to establish and maintain communication with any of your employees who are absent due to infection. 2. The Duty to Control Workplace Infection The heart of the employer’s duty is to implement what a 2006 BC Guideline for managing pandemic influenza calls “infection countermeasures” to minimize the risk of infection in the workplace. Other provincial guidance offers similar advice. Such countermeasures include:

• Basic hygiene measures such as furnishing soap, anti-bacterial products and paper towels and keeping sinks and surfaces that people touch, e.g., door knobs, clean;
• Posting signs, posters and notices reminding employees to wash their hands properly, use cough etiquette, keep social distances, etc.
• Adopting work practices that promote social distance, for example, using conference calls instead of face-to-face meetings;
• Adopting design measures such as keeping workstations as far apart as possible;
• Screening employees and visitors entering the workplace for signs of influenza;
• Providing employees protective gloves, surgical masks and other PPE; and
• Managing cases of infection at work, including telling those suspected of having influenza to go home immediately and monitoring which employees get infected, where they work, etc.

THE IMPACT ON HR

Provincial influenza resources also recommend that employers create and implement a preparedness plan to minimize business disruption in case of a pandemic. Business continuity planning by your organization will likely force you to adjust your HR policies and, in the process, expose you to legal risks, including: 1. Disability Discrimination for Quarantines Employees who contract illnesses are likely to be considered disabled under human rights laws. Consequently, policies that allow you to force sick employees to leave work or deny them access to the workplace could lead to discrimination lawsuits. So, make sure that policies allowing for social distancing or quarantining of employees are consistently enforced and based on objective criteria. 2. Disability Discrimination for Failure to Accommodate Long Absences Permanently replacing employees because of long absences due to illness is another potential form of disability discrimination banned by human rights laws. Tolerating long absences is part and parcel of the duty to accommodate the employee’s disability to the point of undue hardship. But you don’t have to hold the job open forever. The question of how long an absence can last before undue hardship is reached varies based on the nature of the position, the employee’s prognosis and other factors. (The Insider will explain how to determine whether an absence has lasted long enough to reach the point of undue hardship in a future issue.) 3. Privacy Violations when Obtaining Employees’ Medical Information If you’re federally regulated or subject to the laws of province that has its own privacy law, e.g., AB, BC and QC, you can’t collect, use or disclose an employee’s private health information without consent. Exceptions apply when the employer needs the information to carry out legitimate business functions such as verifying an employee’s eligibility for disability benefits or unpaid leave. But the exception covers only the minimum information necessary to perform the function. It’s fairly well established that asking for information about a prognosis is okay but asking for a diagnosis is not. Unfortunately, the lines between what information you can and can’t ask for without consent are fuzzy. That’s why you should ask employees to consent before getting their information. (For more information about how to get employees’ medical information without invading their privacy, see, Insider, Vol. 2, No. 1.) 4. Improperly Disciplining Employees Who Legitimately Refuse Work The right of employees under OHS laws to refuse dangerous work was originally intended as a safeguard against traditional industrial hazards like toxic chemicals or defective machinery. But employees have also tried invoking the right to refuse work involving the risk of infectious disease, most notably during the SARS outbreak. For example, in 2003, an airport customs agent refused to handle travelers from Asia without wearing a surgical mask and gloves [Chapman and Canada (Customs and Revenue Agency)]. Two years later, a government immigration official engaged in a similar refusal [Caverly and Canada (Human Resources Development)]. In each case, the arbitrator ruled that the refusal was unjustified because the employee’s fear of contracting SARS was unreasonable. However, the question of whether the right of refusal applies to infectious disease is far from settled. (For more information on work refusals, see, Insider, Vol. 2, No. 1.) Other Legal Issues to Watch Out For Some of the other legal questions that HR must consider before taking steps to prevent infectious diseases from spreading to the workplace include:

• Is the company’s use of temporary employees to replace absent employees permissible under the terms of the collective agreement?
• Do arrangements that require employees to put in longer hours to make up for labour shortfalls comply with maximum hours restrictions under the employment standards law?
• Are employees getting all the overtime they’re entitled to for the extra hours they’re working?
• Are employees entitled to unpaid leave if they contract the illness or take off work to care for a family member who becomes ill?
• Can you discipline employees for failing to follow hygiene or infection control guidelines?
• Are employees who are ill or quarantined entitled to disability, workers’ compensation and other benefits?

HR & Response Planning In addition, HR directors will have to work with their organization’s planners on lining up sources of alternative labour to make up for absences caused by a pandemic. Those functions are likely to include:

• Identifying who has the skills and training to perform various critical business functions;
• Contacting temporary employment agencies and even your own retirees to secure replacement labour;
• Arranging for training of replacement labour; and
• Overseeing communications with absent employees who contract infections or must take care of family members who do.

Conclusion There are two things you need to take away from this article. First, you do have a legal obligation to take measures to protect your employees against foreseeable workplace hazards including the risk of contracting pandemic illnesses when outbreaks occur. Second, when and if an international health crisis threatens your workforce, the laws don’t get suspended. The response measures you take to deal with the crisis must meet the requirements of discrimination, employment standards, labour relations, OHS, privacy and other laws that govern the employment relationship. SHOW YOUR LAWYER Chapman and Canada (Customs and Revenue Agency), [2003] C.L.C.A.O.D. No. 17, Decision No. 03-019. Caverly and Canada (Human Resources Development), [2005] C.L.C.A.O.D. No. 10, Decision No. 05-011.