The Ontario Government has worked to provide COVID-19 positive workers with job security and the ability to focus on getting better, rather than just back to work. Where workers fear their job is in jeopardy, some would rather risk going to work with COVID-19 than being fired for absences. It is therefore important for both employees and employers to be aware of the applicable COVID-19 protections and support available to reduce the spread of COVID-19.

Contracting COVID-19 in the Workplace

If you believe you contracted COVID-19 at work, you may be able to make a Workplace Safety and Insurance Board (“WSIB”) claim. A successful WSIB claim will demonstrate that the risk of contracting COVID-19 in the workplace is greater than the risk posed to the public at large and that their work significantly contributed to their illness. This will involve a consideration of the nature of the employee’s work and activities, their COVID-19 symptoms, and the timing of the illness.

However, WSIB also advises that while some types of jobs may have an increased risk of contracting COVID-19 in the workplace, such as healthcare workers and public-facing jobs, each claim will be considered on a case-by-case basis of the facts and circumstances. Adjudication for these claims may be complicated by the variety of potential COVID-19 sources that a person may encounter on a daily basis.

Employees also have the ability to refuse unsafe work. Where an employee feels that proper safety precautions are not being taken, or otherwise has reasonable grounds to believe that their work is dangerous, they will have the option to refuse the work or request accommodations.

Leaves of absences

The government has extended job-protected leaves for COVID-19 related absences. The Employment Standards Act (“ESA”) has been amended to include the Infectious Disease Emergency Leave (“IDEL”). IDEL provides unpaid job protection for employees who are unable to work due to a variety of COVID-19 related reasons, such as treatment of COVID-19, quarantine or caring for someone else for a COVID-19 related purpose. Another important change to the ESA is that employees will not be required to provide a medical note if they decide to take leave for one of the above reasons.

Can I be fired for contracting COVID-19 in the workplace?

In short, no. An employer can not dismiss a worker for contracting COVID-19 in the workplace, or due to any other type of illness, or for exercising their legal right to take leave or sick days. However, this does not mean that you cannot be terminated while on leave recovering from COVID-19 or while quarantining. For example, you can be validly terminated if your employer needs to close their business, lay you off, or decides to terminate your employment for reasons other than your illness or decision to take leave. In each of these instances, however, you will still be owed your entitlements upon termination, such as applicable notice and severance obligations.

Takeaways

An employer will not be permitted to dismiss an employee for contracting COVID-19 in the workplace, for taking the necessary leave to recover, or for caring for someone else in relation to COVID-19. Employers and employees should work together to create safe workspaces that minimize the chance of spreading COVID-19 within the workplace. Where an employee believes they have contracted COVID-19 in the workplace, however, they may be entitled to make a WSIB claim.

To better understand your workplace rights and explore the viability of a claim during these unprecedented times, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

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