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From the desk of:

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Howard Manis

Partner

Resuming operations during COVID-19: What employers need to know

As the Federal and provincial governments have continued to expand and extend existing emergency responses to assist employers/employees, landlords/tenants and small/large businesses to meet the challenges associated with COVID-19, attention has turned to reopening the Canadian economy and retuning to work. While textile care professionals in the cleaning and laundry sector may have been deemed essential services, not every retail store may have been open during the pandemic. This raises questions about the steps that employers should be taking to train their employees and adapt their physical workplaces in order to continue operating, perhaps with more staff and more customers, or return to work (if they did shutdown) during the pandemic.

Careful planning is required to accomplish the competing but essential goals of maximizing protection from the spread of COVID-19 in the workplace for employees, customers and others, while at the same time minimizing disruption to the employer’s business operations. Employers must consider a range of issues in the context of their particular business needs. The purpose of this article is to address some of the issues that employers should have in mind as they develop and adapt their business continuity and/or return to work plans.

Calling Employees Back from Lay-Off

If an employee is recalled prior to the end of the applicable statutory layoff period, in most jurisdictions the employment relationship will continue and the employee will not be entitled to anything they might have been entitled to on termination.

If an employee is laid off and is not recalled prior to the end of the applicable statutory layoff period, the employment relationship is deemed to be terminated and anything owing to the employee on termination pursuant to statute, the employee’s employment agreement, a workplace policy, or, if applicable, a collective agreement, will be owed.

Employers will have to assess when the time is right to recall laid off employees, but there are certain parameters and timeframes set out in the Ontario Employment Standards Act 2000, and other provincial statutes.

There are numerous issues that may arise when calling employees back to work during a pandemic, including which employees to call back, whether call backs should be staggered, returning employees on reduced hours or wages back to full time hours and wages, many of which may give rise to constructive dismissal claims.

If the right to lay-off an employee in not expressly provided for in an employment contract then strictly speaking the lay-off, unless expressly consented to by the employee, would be considered a constructive dismissal.

Risks Associated with Operating a Business During COVID-19

Employers should consider how the risks associated with COVID-19 affect their obligation to take reasonable steps to ensure a safe and healthy workplace under applicable occupational health and safety legislation. In particular, employers who fail to take adequate steps to prevent the spread of COVID-19 in the workplace may be subject to inspections, compliance orders and significant fines imposed by occupational health and safety officials. There is also the potential for civil liability where the spread of COVID-19 in the workplace leads to illness or injury for employees and third parties who do not have workers’ compensation coverage. Finally, employers must be mindful of their obligations under existing employment agreements and policies and ensure their business continuity and/or return to work plans take these obligations into account. An employee can refuse to return to work if they can prove that it’s unsafe or that it’s likely to be unsafe. 

Consequences for Failure or Refusal to Comply with the Business Continuity or Return to Work Plan

Employers will also have to consider what disciplinary or other consequences will be applied to employees who fail or refuse to comply with the business continuity or return to work plan. For example, will employees be sent home in these circumstances, and if so, will they be paid or unpaid while they are away? When considering the issue of discipline, take into consideration whether the employee’s action constitutes misconduct, or if it reflects a legitimate concern involving human rights, privacy or the right to refuse unsafe work under occupational health and safety legislation. Also consider what steps will be taken where a third party or contractor employee fails or refuses to comply with the business continuity or return to work plan.

Response to a Positive Diagnosis or Potential Exposure to COVID-19 in the Workplace

Consider in advance what steps you will take if an employee or their family member tests positive for COVID-19, or is exhibiting symptoms of possible COVID-19, or has been exposed to someone else with COVID-19. Will self-quarantining or testing be required in these circumstances, and what happens if the test result comes back positive or negative? What steps will be taken with respect to contract tracing among other employees, and who will be responsible for that? Will the business remain open while these steps are taken, or are there any additional protective measures that will be implemented in these circumstances? How will a positive test result in the workplace be communicated to other employees, bearing in mind the privacy rights of the employee with confirmed or suspected COVID-19?

Response to Employees Who Believe that Returning to Work will Cause or Exacerbate a Disability or Health Risk

Some employees may believe that returning to work at this time will cause or exacerbate an existing disability such as anxiety, an autoimmune disorder or respiratory problems, or lead to some other increased risk to health and safety. Consider in advance how you will handle these concerns, including who such concerns should be directed to, what medical information will be required from the employee, whether any job protection exists under applicable employment standards legislation and whether the employee would qualify for short- or long-term disability benefits in these circumstances. Also consider whether any human rights issues arise and, if so, whether the employee can be accommodated by working from home. 

Following the assessment, employers must ensure that their current health and safety policies/practices are up to date to address the risks associated with COVID-19. Where employers do not have these policies/practices in place, it is imperative that employers implement same. 

Practical Suggestions 

Keeping the workplace clean and sanitized is vital to minimizing any risk of transmission of COVID-19. Prior to having employees return to work, employers are encouraged to arrange for and increase the budget and frequency of janitorial services. In addition to regular cleaning, having a scheduled more thorough “deep clean” of all workstations and frequently touched surfaces (keyboards, phones, copiers, water coolers, break rooms, door handles, vending machines etc) is highly recommended. 

In addition, employers are encouraged to: 

  • Require hand sanitizer to be used by every individual entering the workplace
  • Provide hand sanitizer and disinfectant wipes throughout workstations
  • Encourage staff to disinfect their workstations and frequently touched surfaces
  • Remind staff to frequently wash their hands and minimize the surfaces they touch
  • Ensure that employees are educated and made aware of COVID-19 symptoms
  • Appoint a designated COVID-19 management team/individual for employees to voice any concerns, questions and report any illnesses 
  • Develop policies and procedures for and employees to report when they are sick or experiencing symptoms of COVID-19
  • Consider supplying or promoting the use of personal protective equipment such as gloves and masks especially for employees who are working within a small space with others
  • Ensure that sick leave policies are flexible and consistent with public health guidelines
  • Post notices throughout the workplace reminding employees to use hand sanitizer and frequently wash their hands.

Employers should consider the following to assist with Physical Distancing 

  • Implementing a phased in return to work, allowing some staff to continue to work from home (where possible), allowing for a gradual transition to full operating capacity
  • Promote physical distancing by encouraging staff to keep at least six feet between them where possible
  • Potentially limiting the number of individuals in the elevator/stairwell at one time
  • Reconfiguring work spaces and using floor markers to show distances of six feet
  • Erect cubicle/plexiglass partitions between workspaces, and between employees and customers, where practical to do so
  • Leave doors ajar where possible to prevent staff from having to constantly touch door handles/push doors open
  • Minimize in-person meetings where possible and if necessary, consider holding in-person meetings in large enough spaces to accommodate everyone in a way that adheres to physical distancing recommendations
  • Establish a protocol for deliveries and office visitors, minimizing the exposure to employees

This article is not intended to serve as a comprehensive treatment of the topic and is not legal advice. All legal matters are dealt with pursuant to their specific facts and circumstance. Nothing replaces retaining a qualified, competent lawyer.