While the public health emergency is far from over, both the federal and provincial governments are turning their attention to reopening businesses across Canada. Although each province is creating its own reopening plan, and the provinces may be at different stages in terms of emergency and recovery, it is never too early for employers to start considering how they are going to operate in a COVID-19 world. Below are some issues we encourage employers to think about when devising their return-to-work plans.
When to Re-Open
To contain the spread of COVID-19, governments across Canada issued public health and emergency orders which included the closure of many non-essential businesses. Some closure orders have already been lifted, while others will be lifted as part of the provinces’ phased reopening approach. The timing for reopening businesses across Canada varies from industry to industry and across the provinces. Therefore, before recalling employees to the workplace, employers should make sure they are certain as to whether they are legally permitted to reopen. Breaching a closure order can lead to significant liability. For example, in Ontario, a company can be fined up to $10,000,000 under the Ontario Emergency Management and Civil Protection Act, and directors or officers of corporations can be fined up to $500,000 and imprisoned for up to one year.
Occupational Health and Safety
Most employers in Ontario are subject to the Occupational Health and Safety Act (the OHSA), which lists various employer duties including the catch-all duty to take every precaution reasonable in the circumstances for the protection of its workers. Thus, before reopening businesses across Canada, employers should consider what health and safety measures need to be taken. Employers who fail to take such steps expose themselves to increased interference from the Ministry of Labour (by way of inspections, orders and fines) as well as civil liability should an outbreak of COVID-19 in the workplace lead to illness or injury to employees and third parties who are not covered by workers’ compensation regimes.
In addition to having a legal obligation to take every precaution reasonable to protect workers from a COVID-19 outbreak, a failure to take adequate steps could result in having to close the business again, especially if there is an outbreak at the workplace. Therefore, health and safety should be at the forefront of any return to work plan.
As COVID-19 related news is updated almost by the hour, it may be difficult to stay on top of each government update. However, it is crucial for employers to be informed as to the latest information regarding COVID-19 from public health officials and the government. Employers should assess what resources are available for them to monitor the latest COVID-19 updates. In this regard, federal and provincial governments have all established dedicated COVID-19 websites that are regularly updated. Most provinces have released their own reopening plans, which tend to include guidance for employers. If your workplace or industry is unique, you may wish to consult industry-specific resources.
Policies and Procedures
Most employers in Ontario must have a written occupational health and safety policy which must be reviewed at least annually. Even if the policy has been reviewed recently, now is an ideal time to review the policy again, and consider whether it should be amended to include COVID-19 considerations, or if an entirely separate COVID-19 policy is needed. Regardless of which approach is taken, what is important is that policies be in place to establish employer expectations regarding the prevention of COVID-19 at the workplace, as well as rules and processes to be followed. Unionised employers should consult the collective agreement to determine whether the union should be involved with respect to developing or updating such policies. Employers may also want to review their current policies on sick days and assess whether any changes need to be made.
Changes to the Workplace
It is important for employers and employees to understand that reopening businesses across Canada does not necessarily mean returning to normal. Rather, there are likely many changes that will need to be implemented to limit the spread of COVID-19 and ensure the workplace can remain open. Some companies are considering requiring temperature checks for people entering the premises, while others are opting for self-assessment questionnaires. Other changes may include requiring employees to use PPE, closing access to common areas to avoid employee congregation, introducing plexiglass screens or other physical separation equipment, using directional signage and floor markings to assist employees in maintaining physical distancing, etc. Employers may also need to change employees’ schedules so as to stagger start times, thereby reducing the number of employees at work at a given time.
Some of these changes could conflict with an employer’s obligations under employment standards legislation or human rights legislation, or could give rise to a constructive dismissal. It is important to consult with an employment lawyer to understand all the implications a proposed change may have.
Responding to a Positive Diagnosis or Potential Exposure to COVID-19 in the Workplace
One of the most important things a COVID-19 policy must address is what reporting obligations employees have with respect to a positive COVID-19 diagnosis or even potential exposure to COVID-19. Employees should be reminded that they are already under an obligation to report any situation in the workplace which could be hazardous to the health or safety of others (this obligation arises from the OHSA). In the context of COVID-19, exposure to the virus is certainly a situation that could be hazardous to the health or safety of others. Thus, employees need to understand they are required to report to their supervisors if they have symptoms of COVID-19 or have reasonable grounds to believe they may be infected, and that they may be required to remove themselves from the workplace in these scenarios.
For the policy to be followed, it should be clear that no employee will be penalised for abiding by the policy. The policy should also address employee privacy and whether a positive diagnosis or exposure to COVID-19 will be communicated to other employees and to what extent. In other words, for employees to self-report pursuant to the policy, they must feel safe doing so.
The topics above are by no means exhaustive. Rather, the purpose of this blog was to raise the various issues and factors employers need to consider when planning for reopening the business. As the news about COVID-19 is always evolving, these factors must continue to be at the forefront, even after the workplace is reopened, to ensure it can remain open.
With years of experience in employment law, we at Whitten & Lublin are happy to provide insight and advice in your specific re-opening plan and any measures you are considering implementing. If you would like to discuss your plan with an employment lawyer, please contact us online or by phone at 416-640-2667.