Returning to Work After the Pandemic Shutdown
by Patrick Trudel and Jennifer Sykes
As Canadians slowly begin to emerge from our COVID-19 imposed isolation, businesses are faced with a new set of difficult questions about their obligations to their staff. Employers need to make sure that they are fulfilling their duties to their employees.
This post is intended to shed some light on several things that employers should keep in mind as they work their way through the new set of challenges we are all now facing. It is primarily intended for non-unionized workplaces.
Staying in the Loop:
Before you undertake costly measures to prepare to re-open such as purchasing inventory and PPE (personal protective equipment), it is important to make sure that decisions are made based on accurate and up to date information.
Things can always change (as was demonstrated with the recent staggered reopening of Calgary and Brooks compared to the other zones in the province and the resulting confusion and costs to local businesses). However, information is key and the best approach is still to stay as up to date as possible.
The Government of Alberta is constantly updating its main Covid-19 relaunch webpage. It should be consulted frequently to determine whether reopening is appropriate and to keep track of potential future increased restrictions or requirements.
Managing Risk:
Employers must provide a healthy and safe workplace. This should be your “guiding star” when deciding exactly how and when to re-open.
This is about protecting your people and about protecting your business from liability. It is important to make sure that you are not only meeting specific legislated standards but also general obligations for what is expected in your industry. Failure to do so could result in penalties, lawsuits, or worse.
The starting point will be to make sure that you comply with mandatory legal requirements. See the end of this post for some starting points on where you may be able to find these. This won’t be enough on its own, though.
As an employer, you need to make sure that you have “reasonable” precautions in place. This is easy to say but may not be so easy to implement. What exactly is “reasonable” will vary depending on the circumstances. A good place to start might be industry-specific guidelines and recommendations.
You should keep a record of the source documents you looked at when creating your plan. That record might be all that stands between your business and significant liability.
If you are subject to workers’ compensation legislation, this doesn’t mean you are necessarily protected from claims by your employees. The WCB has set out its requirements for a COVID-19 related claim.
When you are putting together your return to work plan, remember that there are certain principles of hazard management which may be helpful for you to keep in mind. These principles tell us that, hazards should be identified and eliminated. In the event that they cannot be eliminated, they must be controlled. There are 3 general approaches to controlling hazards, from most to least preferable they are:
Engineered controls, such as physical barriers between people;
Administrative controls, such as limiting the number of people who may be in an area at the same time; and
The use of personal protective equipment (PPE)
Privacy Concerns:
A key part of protecting your staff will be controlling whether people who are showing symptoms of COVID-19 are coming into your place of business.
You might want to screen your employees (plus potentially clients and visitors). When you are considering this, keep in mind that privacy legislation might limit what information is collected, how it is collected, and how the data is used and stored.
Generally, you should only collect that information which is reasonably required given the circumstances. What is reasonable will depend on your industry, what science says, and whether there are less invasive ways to achieve the same result.
You should try to collect data in the least invasive way possible. Examples of this could include asking questions privately, designating which employees are tasked with asking questions, and establishing policies for how information is used and stored.
One of my Employees has Tested Positive for COVID-19, Now What?:
You are required by occupational health and safety legislation and as part of your civil duty as an employer to address safety in the workplace.
If someone tests positive, some of the steps are very clear. That person needs to be sent home immediately and should not be permitted to return until they are no longer required to self-isolate under Provincial standards. Their workstation and anything else they have had contact with should be cleaned.
Disclosing to other staff is a bit of a balancing act. If other employees could have been exposed, they need to be warned, but you will need to make sure that you are only disclosing the information required to protect the safety of your workers. Going beyond that and giving out more information than necessary could get you into trouble under privacy legislation. This is going to be a very difficult and sensitive situation and needs to be carefully handled.
Refusal to Work:
What if an employee doesn’t want to come back to work? There is a process through occupational health and safety to deal with this situation, and if the employee still refuses to come back to work once the workplace has been deemed to be safe, this may be grounds for termination.
The Duty to Accommodate:
Even if a workplace is generally safe, that doesn’t mean it is safe for everybody. An employee might have a medical condition, or some other reason protected under human rights legislation that prevents them from returning to work.
You might have a duty to accommodate a particular employee’s specific needs. This might mean adjusting the workplace or the terms of work. The Alberta Human Rights Commission has devoted resources to ensuring access to relevant information. These resources may help you understand the human rights consequences of reopening policies.
Vacation time:
One frustrating aspect of the COVID-19 lockdown has been our inability to travel. Unable to go visit family or take a vacation, many employees have opted not to use their vacation time yet. They may be entitled to a significant amount of vacation time, and half of the calendar year has already passed.
Employers can require the employee to take their vacation at a time that works for the employer, subject to certain requirements in employment legislation. This may be something to keep in mind when planning re-opening. It may be preferable to have a vacation schedule in place rather than have the entire staff request vacation at once in December.
As a small business, we at Caron & Partners are also tackling many of these issues on an ongoing basis. As you undergo your own reopening, do not hesitate to reach out to our professionals with any questions or concerns. We look forward to working with you as you ensure a stable and fruitful future for your business.
Resources:
There are a lot of resources out there for employers, and sometimes the volume of information can feel overwhelming. Here are just a few resources which may be helpful from the Province of Alberta:
· Temporary Workplace Rule Changes
· Covid-19 General Relaunch Guidance