Coronavirus – What About Our Staff?

As we continue to navigate this unprecedented situation, we are trying to address questions raised by managers and condominiums in a timely manner.

One of the many concerns that we have heard over the last couple of days related to COVID-19 is: What are condominium corporation obligations as employers?

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

First and foremost, employers (including condominium corporations) have an obligation (under the Occupational Health and Safety Act) to take precautions, reasonable in the circumstances, for the protection of a worker. This means condominium corporations need to take steps to protect employees from the risk of transmission of COVID-19. Condominium corporations also must communicate hazards and train employees.

With condominium corporations, the number of employees is often small, in some cases condominiums only employ one person. [Note: This is of course 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 the Public Health websites for the municipality in which it is located and Ontario Public Health, and should be following the recommendations provided.

In our view, there are a few key steps that condominium corporations can take to help ensure the safety of their employee(s):

• If it has not already done so, the condominium corporation should implement a COVID-19 Plan. This plan should address:

• Decisions being made based on Public Health recommendations.

• Education on preventing infections – click here for Ottawa Public Health’s recommendations.

• Information the employer will be asking:
  1. Are you exhibiting any symptoms of the illness?
  2. Have you come into close personal contact with anyone who’s exhibiting any of the symptoms?
  3. Have you traveled to an affected area?
  4. 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, if possible, or not to attend at their place of work– following recommendations from Public Health.

• Steps being taken to promote social distancing in the workplace. [Note: This should include notices to owners / residents, See recommendations from our previous blog.]

Even if the Corporation does not have a plan at this time, it is important to put one in place now in order to be able to rely on it going forward (and to amend it as necessary as the situation changes).

• Permit (and encourage) all workers that 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 that 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 that protection of workers that 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 a condition in the workplace (ex. possible 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.

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

Yes – at this time the Ontario Government has not prohibited businesses from remaining open.

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 50 people or more. It has also mandated the closure of recreation centres, public libraries, private schools, day cares, bars, restaurants, theatres, concert venues and cinemas. There are some exceptions for takeout/delivery restaurants. HOWEVER: The Ontario Government has not mandated the closure of private businesses and has not required that all residents be quarantined. This means that Ontario Employers, other than those set out above, are able to continue to operate and to 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.

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:

• • Workers, including the self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits.
  • 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.
  • 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 its 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.

There is a very helpful YouTube seminar from Dentons respecting Employer obligations during COVID-19. Information respecting sick leave and EI benefits begins at the 29 minute mark. It discusses ways an employer may consider extending benefits.

Can we ask for a doctor’s note?

It is not recommended at this time.

It is likely that the government will be drafting legislation that confirms employers cannot ask for a doctor’s note. Public Health representatives are recommending that employers do not ask for notes in order to avoid unnecessary trips to the doctor. In Ottawa, there is a doctor’s note posted that employees are being encouraged to use in lieu of attending at their doctor’s office to obtain a note.

Do we have other comments and suggestions for Condominium Boards surrounding these issues?

Yes, here are some of our other ideas:

• Communicate regularly with any employees about the situation and provide updates as circumstances change.

• Ensure that you communicate social distancing protocols for your employees (i.e. limiting contact with large groups of people, frequent hand washing with soap and water, covering cough and sneeze with your elbow….as noted in our previous blog, the Ottawa Public Health Authorities website provides a summary respecting social distancing).

• Keep an eye out here 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.

We expect to have more blogs for you as the questions keep coming in.

Again, we wish you as much safety and comfort as possible in this exceptional crisis.

Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!