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Employment Implications of Influenza A (H1N1)
May 5, 2009

The threat of an influenza pandemic has potentially serious implications for all workplaces. The following summarizes some of the legal obligations employers may face in the present circumstances.

Sick Leave Benefits

An employee suffering from an influenza A (H1N1) infection has the same entitlement under the company’s sick leave plan as they would with any other illness.

If the employer’s plan does not provide paid leave or an employee has exhausted his/her paid sick leave entitlement, the employee may be eligible for sickness benefits under the Employment Insurance Act. To qualify, the employee must have accumulated the required number of insured hours of employment in the past 52 weeks or since the employee’s last claim, and the employee’s regular weekly earnings must have decreased by more than 40%.More information on eligibility for EI sick benefits is available at the Service Canada website at www.servicecanada.gc.ca/eng/sc/ei/benefits/sickness.shtml

Employment Standards Act

The BC Employment Standards Act does not contain provisions requiring employers to grant leave, with or without pay, to employees who are unable to work due to illness. However, there are provisions in the Act that may be triggered in the event an employee seeks time off to care for a family member who is ill.

Section 52 (family responsibility leave) allows an employee to take up to 5 days unpaid leave of absence each year to meet responsibilities related to the care or health of a child in the employee’s care or any other member of the employee’s “immediate family” as defined in the Act. Further, section 52.1 (compassionate care leave) allows an employee to take up to 8 weeks of unpaid leave to provide care or support to a family member if a medical practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks.

Eligibility requirements for these leaves are set out in the statute and in publications of the Employment Standards Branch, which can be accessed at www.labour.gov.bc.ca/esb/.

Precautionary Measures

An employer may direct an employee not to attend at work for a period of time as a precautionary measure for the protection of other employees, for example, where an employee is returning from travel abroad and/or it is believed that the employee was exposed to the influenza A (H1N1) virus. Where this occurs, the employer is likely obliged to continue paying the employee’s regular wages and benefits for the period of the employer directed leave.

If an employee is quarantined or otherwise prevented from attending at work at the instance of someone other than the employer, or where there is a contractual provision requiring it, the employer should consult its sick leave policy and benefit plans to determine whether the employee is eligible to receive sick leave benefits. This may be the case even though the employee in time discovers he is not infected. In such circumstances, if the employee does not qualify for paid benefits under the employer’s plan, he may be eligible for EI sickness benefits.

Workers Compensation Benefits

Section 6 of the Workers Compensation Act may create an entitlement to workers compensation benefits for employees in certain occupations (e.g. some health care workers) who become infected by the influenza A (H1N1) virus as a result of the performance of their employment duties.

It is important to note that a worker is not entitled to compensation simply because the worker contracted the disease while at work. For an occupational disease to be compensable there must be something in the nature of the employment that had causative significance. The nature of the employment must either create a risk of contracting a disease to which the public at large is not normally exposed or create a significantly greater risk of exposure to a disease than that faced by the public at large.

Occupational Health and Safety

The threat of an influenza pandemic may also impose occupational health and safety obligations where there is a risk of exposure to the virus in the workplace.

As outlined in Occupational Health and Safety Regulations 6.33 – 6.41 and the associated Guideline published by WorkSafeBC, when a worker is at risk, or may reasonably be expected to be at risk, of harmful contact with a biological agent specified by WorkSafeBC, the employer is required to implement an “exposure control plan”. WorkSafeBC has specified that this requirement applies in the case of pandemic influenza.

More information regarding the employer obligation to develop an exposure control plan to address the threatened Influenza pandemic is available on the WorkSafeBC website at: www.worksafebc.com/news_room/features/2009/new_042909.asp.

Refusal of Unsafe Work

OH&S Regulations 3.12 – 3.13 describe the right to refuse to perform job duties where the employee has reasonable cause to believe that this would create an undue hazard to his health and safety or the health and safety of others. The Regulations prescribe detailed reporting and investigation procedures that must be followed by the employee and the employer where an employee asserts the right to refuse unsafe work. The WCA and the OH&S Regulation also prohibit discriminatory or retaliatory action against an employee for refusing to perform work in accordance with the Regulation.

If you have any questions regarding these or any other employment related issues, please call or email your regular Harris & Company LLP contact.