The COVID-19 pandemic raises significant workplace issues. One of them is whether there are circumstances in which an employee has a right to stay home during the outbreak, without risking the loss of their employment.
An employee may be entitled to stay home from work for the following reasons:
1. Occupational health and safety concerns;
2. Emergency Leave; or
3. Human Rights protections.
1. Occupational Health and Safety Concerns
We canvassed the question of when an employee might refuse unsafe work in COVID-19: WORKPLACE FACT SHEET #1: When May an Employee Lawfully Refuse to Work?
2. Emergency Leave
Section 60I of the Nova Scotia Labour Standards Code (the Code) entitles employees to an unpaid leave where an emergency prevents the employee from performing their job duties.
The definition of “emergency” under that section likely includes the current health crisis. In the section, “emergency” includes
(i) an emergency declared under the Emergency Management Act that prevents the employee from performing the employee’s work duties,
(ii) a direction or order of a medical officer under the Health Protection Act that prevents the employee from performing the employee’s work duties,
(iii) a public health emergency declared by the Minister under Section 53 of the Health Protection Act that prevents the employee from performing the employee’s work duties.
On March 22, 2020, a public emergency was declared under the Nova Scotia Emergency Management Act.
Various orders have been issued under the Nova Scotia Health Protection Act.
An emergency also includes circumstances that relate to the employee’s family care obligations:
(2) Notwithstanding clause (b) of subsection (1), an emergency includes a circumstance under subclause (i), (ii), (iii), (iv) or (v) of clause (b) that applies to a family member of an employee if
(a) the declaration, direction, order or other prescribed circumstance directly applies to a family member of the employee;
(b) the declaration, direction, order or other prescribed circumstance results in a situation where the family member of the employee requires care or assistance;
(c) the employee is the only person reasonably able under the circumstances to provide the family member with the required care or assistance; and
(d) providing the required care or assistance to the family member has the effect of preventing the employee from performing the employee’s work duties.
The Code entitles an employee to take an unpaid leave of absence for the period the emergency prevents the employee from working:
(3) An employee is entitled to an unpaid leave of absence for such time as the employee cannot perform the duties of the employee’s position because of the emergency.
It is prohibited under the Code for an employer to take action against an employee for the reason that the employee has accessed a right under the Code.
An employee who wants to access Emergency Leave should inform their employer, not simply decline to show up at work. Whether an employee is entitled to Emergency Leave will depend on the individual circumstances of each case, most importantly, whether or not the emergency or an order from a public health official actually prevents the employee from doing their job.
3. Human Rights Protection
In addition to the above, if an employee does not want to attend work because they have a disability that puts them at heightened risk, or because they have family caregiver obligations, the employer’s obligations under the Nova Scotia Human Rights Act may be engaged. Employer policies that have a differential impact on individuals because of a disability or family status may be discriminatory.
If an employer’s Human Rights obligations are engaged, the employer will have a duty to accommodate the employee to the point of “undue hardship”. Allowing an employee to stay home from work to avoid risk or take care of children while schools are closed is not likely to constitute undue hardship.
The duty to accommodate also requires the employee to be an active, cooperative participant. An employee who believes they need to stay home during the outbreak due to disability or family status should communicate their needs to the employer. The employer may find an alternative accommodation to having the employee take a leave—the employer will need to provide a reasonable accommodation, not the employee’s perfect accommodation.
For further information about workplace issues relating to COVID-19, contact us at (902) 423-7777, toll-free at 1-800-565-4529, or [email protected].
* This information is not legal advice. The answers to these questions will vary, depending on the circumstances of each case. Consult legal counsel for information and advice relevant to your individual circumstances.