The short answer: No, as long as you are following medical advice or following the government’s guidelines on COVID-19.
The Globe and Mail asked me to answer this question for its readers in a recent column of the Nine to Five. The full question was as follows:
I’m a personal support worker in a long-term care facility. I contracted COVID-19 and was off for three weeks to recover. I’m still testing positive for COVID-19, but since I’m no longer symptomatic, my supervisor says that I should be reporting back to work. I want to work again, but it also doesn’t feel right to be around high-risk individuals right now. What should I do? What are my rights if I want to stay home and recover for another week?
Here’s the long answer:
Employees in this situation should consult with their medical professional to determine whether it is safe to return to the workplace despite being asymptomatic. If the employee receives medical advice that it is unsafe to return, the employee should inform their employer and take a leave of absence until they are medically cleared to return. If the medical advice is that it is safe to attend work, the employee must return to work if instructed to do so by their employer.
Employment legislation like the Ontario Employment Standards Act (ESA) provides job-protected, unpaid leave of absences for COVID-19 reasons. This includes a leave of absence for employees who are under medical investigation, supervision or treatment related to COVID-19. If an employer dismisses an employee who is on a COVID-19 related leave of absence, it would be an illegal termination of employment.
Employees also have a legal duty to report any workplace safety issues to their employer under health and safety legislation (like the Ontario Occupational Health and Safety Act). This includes reporting the potential spread of COVID-19. If a medical professional advises that an employee, even if asymptomatic, may pose a risk to co-workers or residents, then the employee must report this fact to their employer. The employer will then decide what the appropriate step is to take when dealing with a safety issue, which will likely be to allow the employee a temporary leave of absence.
This question has legal and medical components, with the medical issue being the most important: is it safe to go to work? Despite Ontario battling COVID-19 for a year now, there is still much to be learned about the virus and necessary safety precautions. Employees and employers should stay up to date with the Ministry of Health to ensure they are acting within the latest guidelines. Consulting with the necessary medical professionals about how to handle COVID-19 will always be a prudent course of action.
The legal component of this question will entirely depend on the medical answer, as the Ontario government was quick to enact provisions in the Employment Standards Act to allow unpaid leaves of absence when employees are affected by COVID-19.
If you require legal advice on employee or employer obligations regarding COVID-19 in the workplace, please contact Jason Wong. Jason is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. You can contact Jason at jason@wongemploymentlaw.com or 647-242-5961.