Governments and businesses have now begun to turn their minds toward the re-opening of the economy and physical workplaces. This past week, for example, both Ontario and Quebec have announced frameworks for the return to work process in their respective provinces over the coming weeks and months.
As employers start to plan for the re-opening of their physical workplaces, there are a myriad of considerations unique to every business as there is no one-size-fits-all approach. As we move toward a "new normal", the primary consideration is consistent - that the focus of any re-opening process should be grounded in health and safety considerations with the goal of protecting the workplace from the spread of COVID-19 now and in the future, recognizing the risk of a second wave.
This blog sets out a series of considerations for employers as they plan for re-opening and the return of employees to the physical workplace. Please note that this blog considers governmental and public health announcements and guidelines available as of April 29, 2020.
How Should Employers Plan for Re-Opening?
Continued Use of Pandemic Response Team/Plan
Pandemic response teams that may have been created at the outset of this crisis should remain in place as employers evaluate and plan for re-opening. The threat of continued spread and/or a second wave of COVID-19 requires a thoughtful, deliberate approach to re-opening that should be informed by a core team, which might include internal stakeholders from operations, in-house legal, health and safety, information technology, communications, human resources, security and leadership, as well as external experts and legal counsel. Having a clear plan in place will allow for a measured and staged approach to re-opening that meets the applicable public health directions and occupational health and safety considerations with respect to the same.
A re-opening plan should consider the following key elements, described in further detail below:
- When will the business re-open? Will it be all at once or in stages? Who ultimately will make the decision to green-light the commencement of this process or a particular stage in the process?
- What steps will be taken to ready the physical workplace for re-opening? Is a reconfiguration required? What sanitization processes will take place? What PPE might be required/provided?
- What policy changes should be considered? How will those changes be communicated to the workforce? Is training required?
- What about third party stakeholders? Are any changes required with respect to their interaction with the workplace or workforce?
- How will employees be called back to work?
- What other health and safety protocols need to be considered?
Government, Public Health and Occupational Health and Safety Resource Links
The following government websites are regularly updated with public health and other information regarding COVID-19 and should be regularly consulted by the pandemic response team:
- Government of Canada (link)
- Government of British Columbia (link)
- Government of Alberta (link)
- Government of Ontario (link)
- Government of Québec (link)
Employers should also continue to monitor and adhere to the latest updates and recommendations regarding the COVID-19 outbreak from public health authorities and occupational health and safety regulators at the federal, provincial and municipal levels to combat the risk of exposure to COVID-19 in their workplaces. Links to key resources are as follows:
Public Health Resources
- Public Health Agency of Canada (link)
- BC Centre for Disease Control (link)
- Vancouver Coastal Health (link)
- Alberta Health Services (link)
- Calgary Emergency Management Agency (link)
- Public Health Ontario (link)
- Toronto Public Health (link)
- Santé Québec (link)
- Santé Montréal (link)
Occupational Health and Safety Resources
- Canadian Centre for Occupational Health and Safety (link and link)
- WorkSafeBC (link)
- Alberta Occupational Health and Safety (link)
- Ontario Ministry of Labour (link)
- Quebec CNESST (link)
Legal and Contractual Considerations
Finally, whenever changes are made to the workplace and terms and conditions of employment, it is critical that employers consult their existing employment agreements, workplace policies and, if unionized, their collective agreements to determine whether revisions would be required to any such documents in order to effect the proposed changes, and to what extent. In a unionized environment, it might require consultation and/or the agreement of the union. Finally, consideration should always be given to applicable employment standards laws either provincially or federally to ensure statutory compliance.
If changes are to be made unilaterally, we recommend seeking legal advice from your lawyers at McCarthy Tétrault to ensure that all considerations are properly canvassed and that a fulsome risk assessment is conducted in advance.
When Should Business Re-Open?
- The timing of re-opening of a particular business will be jurisdiction-specific and must be subject to compliance with applicable governmental, public health and occupational health and safety directives and emergency orders. At a minimum, a business must be legally permitted to reopen at a particular site.
- If the business was "essential" pursuant to applicable government order and therefore permitted to be open at a physical premises during the pandemic, should operations change at all or should the current status quo be maintained?
- If the business was not "essential" pursuant to
applicable government order and therefore not permitted to be open
at a physical premises during the pandemic:
- Has the applicable government order been lifted or amended such that the opening of a physical premises is lawful? Our emergency measures tracker found here is tracking these orders on a daily basis.
- Are all facets of a business legally permitted to reopen? Even if that is the case, should all facets of the business be reopened or does a staggered approach make more sense? This approach will depend in large part on the ramp-up of business operations and a company's ability to manage re-opening in a controlled and safe manner.
- Who are the decision-maker(s) who will ultimately will make the decision to green-light the commencement of this process or a particular stage in the process? Will that be done in consultation with a licensed medical professional, occupational heath and safety specialist and/or industrial hygiene specialist? Have those persons been sourced and retained? Where applicable and appropriate, has the joint health and safety committee been engaged and/or consulted?
- What are the criteria that will be used in order to make a re-opening decision (e.g. public health criteria, occupational health and safety criteria, supply chain criteria, workforce readiness criteria, etc.)?
- There is significant liability for businesses that are found to be in contravention of government closure orders. In Ontario, for example, the penalties for breaching an order made under the Ontario Emergency Management and Civil Protection Act include a corporation being fined up to $10,000,000, while directors and officers may each be fined up to $500,000 and imprisoned for up to one year. In Québec, pursuant to the Public Health Act, the penalties range from $1,000 to $6,000 for each offence and these fines are doubled in the case of a repeated offence.
- In addition, if businesses rush to re-open and do not properly address the occupational health and safety considerations, liability could also arise under federal or provincial occupational health and safety legislation should there be a workplace injury, illness or fatality that follows, which could lead to significant fines, imprisonment and future occupational health and safety inspections for compliance.
What Should Be Considered To Ready The Physical Workplace For Re-Opening?
There are a variety of considerations for employers as they assess risks in their physical workplaces in anticipation of re-opening. As a resource, the Government of Canada has released risk-informed decision making guidelines for workplaces and businesses during the COVID-19 pandemic which are available here.
Workplace Reconfiguration Considerations
- Does the business have internal expertise to assess workplace configuration and its ability to satisfy physical distancing requirements? If not, should an expert be retained to assist with this assessment?
- How can work teams be rethought to be as small and stable as possible?
- How close in proximity are work stations currently? Can additional spacing (i.e. at least 2 meter separation) be achieved through a reconfiguration of work stations and/or the general floor plan to facilitate physical distancing?
- Can physical distancing be accomplished by reducing seating capacity/density in gathering areas such as waiting or reception areas, lunchrooms and boardrooms?
- Is the installation of physical separation equipment such as Plexiglas screening, floor markings or directional signage appropriate? If so, where? Between work stations? In cafeteria areas? In hallways? At service desks?
- Will all areas of the workplace be opened or will some areas remain closed or restricted to prevent gathering, such as kitchens, cafeterias, lunchrooms, cafes, photocopy or supply rooms, patios, etc.?
- Should frequent touchpoints be reduced by propping internal doors open, installing automated doors and lighting, etc.? What safety or security considerations should be considered in respect of a balancing assessment?
- Will the use of communal equipment such as drinking fountains, coffee machines, disposable or reusable cups, stir sticks, cutlery or paper products, communal food items such as coffee, tea, milk, cream and sugar, kettles, microwaves, fridges, vending machines, water coolers, photocopiers, fax machines, printers, etc. be restricted or will certain equipment be removed/shut off temporarily?
- Would changes to HVAC systems improve air circulate and ventilation in the workplace? Are those changes feasible?
- Should access to or movement between areas or zones of the workplace be restricted to ensure that employees and third parties are limited to a particular area or zone of the workplace? Can mail-runs and other delivery processes be altered to limit the amount of cross-movement between zones?
- Who controls the access points - the employer or a third party such as a landlord? If it is a third party, should consultations happen to understand what their plan is with respect to COVID-19 related access issues?
- Should access points be reduced so that access can be controlled and monitored? What security-based changes need be made to restrict access (i.e. keycard systems, hiring of security guards, sign-in mechanisms, etc.)?
- How will spaces requiring close proximity, such as stairwells, elevator banks, elevators and escalators, be managed to facilitate the movement of people while ensuring physical distancing?
- Do emergency evacuation plans need to be updated to deal with changes to access points? How will those changes be communicated to the workforce and third parties accessing the site?
- Will there be any limitations to accessibility for persons with disabilities as a result of access changes? If so, how will those be addressed and what communications or notifications will occur?
- Can tools and/or technologies be utilized to minimize contact with the public or third parties?
- Is there a process for pre-access monitoring, including, for example, temperature checks, questionnaires, declaration forms, signage and self-reporting requirements? If there is going to be any collection of medical information, what privacy protections are in place to deal with that information? Who will be conducting the monitoring? Are they qualified? What PPE might be required to support this process?
- What will the protocol be for situations in which an employee or third party does not agree to screening or when screening results indicate that an employee or third party should not enter the workplace? How will the individuals managing entry be trained on such protocols?
- Does the workplace have restricted points of entrance and exit that force people to be in close proximity and/or pass through high-touch areas (e.g., fingerprint entry, doors and elevators)?
- What number of access points are reasonably required to ensure that there isn't a congregation or bottlenecking of people in close proximity as a result of restricted access? The Government of Canada notes that crowding and lines at bottlenecks can put individuals at increased risk of exposure to respiratory droplets (link).
- How will deliveries and other shipping needs be met? What sanitization processes will exist for goods entering the workplace, if any? What physical distancing protocols will be in place to address the receiving function for employees working in a Shipping/Receiving or Mailroom role, for example?
- Is a deep cleaning process in advance of bringing employees back into the site appropriate or necessary? If so, will the regular cleaning contractor or staff be sufficient or should a specialized provider be engaged? If considering an outside contractor in a unionized environment, be sure to review the collective agreement provisions, if any, on contracting out.
- What cleaning schedule and procedures will be implemented once employees are back in the workplace? Is the company's service provider ready to implement these procedures?
- Is the workplace being cleaned with products from approved lists from governing authorities? We note that Health Canada is working with disinfectant manufacturers and industry associations to inform Canadians of the products that can be used to help against the spread of COVID-19 (link).
- Will cleaning supplies such as sanitizing wipes be provided to employees for use in their own work stations? If so, how will those be procured?
- What are the high-frequency touchpoints in a workplace and what cleaning/disinfecting process will be implemented to address them (i.e. door handles, light switches, accessibility buttons/push plates, elevator buttons, security pass/code access points, time/punch clocks, washrooms, kitchen areas, etc.)?
- What handwashing stations exist currently and are more needed? If more are needed, how will they be installed and where?
- Are hand sanitizer dispensers appropriate? If so, how will they be procured and where will they be located?
Signage and Notification Considerations
- What signage needs to be installed in order to clearly identify changes in the workplace so that they are clear to employees and visitors?
- What communications should go out to employees in advance of re-opening to ensure they are notified of changes and have an opportunity to ask questions before re-attending?
- Have PPE requirements (i.e., what may be mandatory v. recommended v. unnecessary) been determined with regard to applicable health guidance and regulations?
- Where PPE is determined to be required or recommended, does the employer have the procurement process ready to ensure adequate and timely supplies?
- How is the employer ensuring that the PPE it is procuring meets the applicable Health Canada guidelines? Please see our blog here regarding Health Canada's approval process.
- If PPE is not required but an employee wishes to wear their own PPE in the workplace (i.e., a mask or gloves), is that permitted? Are there any restrictions? Who gets to make that decision, keeping in mind the duty to accommodate and other human rights considerations?
- What if an employee refuses to wear PPE or fails to wear it properly? What if the basis for refusal is a human rights ground?
What Policy Changes May be Appropriate?
- Is there a mechanism whereby employees can ask questions or provide feedback on the return-to-work process and any concerns that they may have? Employers need to be mindful to ensure there is no reprisal or retaliation arising from employee feedback, concerns, requests or objections.
- Will regular hours of work be adhered to or are changes necessary? For example, should staggered shifts be implemented or start times adjusted to reduce the number of employees in the workplace at a given time? If staggering employees, which groups of employees should return in the first batches? Do these changes result in a loss of pay or a change to an employee's terms and conditions of employment and if so, to what extent?
- If an approved Work-Sharing arrangement exists, will employees continue to be sharing a reduced workload?
- Will continued work-from-home arrangements, or other flexible working arrangements, be permitted or even encouraged? Who will be permitted to work-from-home and who will be required to attend at the workplace? How will that be determined? Employers need to be mindful of human rights, workers' compensation and other legal and practical issues when making these assessments. A discussion of work-from-home considerations is available on our blog here.
- If teleworking continues, are any revisions to harassment policies required in order to address cyber-harassment? Is a reminder needed regarding the expectation that employees conduct themselves in accordance with the policy regardless of whether they are interacting in person or virtually?
- How will accommodation requests be handled? The duty to accommodate continues to exist vis-à-vis human rights grounds such as family status (arising, for example, as a result of continued school and daycare closures) and disability (particularly for medically vulnerable groups), and some provinces have enacted statutory leaves of absence in response to COVID-19, but what if the request involves other COVID-19 related concerns not otherwise covered by those issues? Are measures in place to assess employee accommodation requests on a case-by-case basis? Are alternative working arrangements available? How will staff absenteeism impact the reopening of the business?
- Is the business prepared to deal with work refusals from employees? A discussion of key considerations when dealing with work refusals can be found here.
- Will there be any wage or benefits changes for any employees returning to work? Have those changes been communicated to employees?
- Does the payroll system need to be updated to address any such changes? What about personnel forms and the HRIS system?
- Will overtime be permitted or will new restrictions be imposed for cost containment or other purposes? How will those be managed and monitored, including where employees are working remotely?
- Will the business be offering mental health or other EAP support to employees to assist with mitigating any concerns that may exist in and around the workplace regarding COVID-19?
- Will there be vacation policy changes, including, for example, vacation blackout periods, reporting of personal travel and mandatory self-isolation following personal travel?
- Will business travel will be permitted and if so, with what restrictions and approval processes? Will an employee be permitted to decline business travel?
- Are there going to be changes to training programs, business expense programs, business development efforts or similar programs, either for cost containment or health and safety reasons?
- Will different or more detailed calendaring rules be implemented so that contact tracing can be facilitated in the event of suspected exposure or a positive case of COVID-19 occurs in the workplace?
- What record keeping practices will be amended or implemented to ensure that employers can respond to COVID-19 related matters such as contact tracing, work refusals, human rights complaints or other forms of litigation?
- Will there be prohibitions or restrictions on activities that might facilitate transmission or spread (e.g., pre-shift huddles, potlucks, buffets, use of communal office equipment)? Does the employer have technology in place to facilitate alternate, remote means of gathering, such as teleconference, video conference, etc.?
- Will there be a hiring freeze or any other changes to recruitment programs?
- How will managers be trained on the new policy changes to ensure they can manage and enforce the same?
- How will policy changes be communicated to employees in advance to ensure they are aware of the same? Is training needed? Do written policies need to be revised and/or posted?
How Will Third Parties Be Managed?
- What third parties (i.e. external vendors, suppliers, members of the public) will be permitted to access the workplace once re-opened and under what conditions?
- What interactions will third parties be permitted to have with employees? How will that be communicated, monitored and managed to ensure the health and safety of both employees and third parties?
- Do health and safety protocols contemplate the health and safety of third party visitors to an employer's site? If not, what changes might be required in order to cover those considerations?
- Can alternate means of meetings with third parties be achieved through technology?
- What assurances will the employer have that vendors and suppliers have themselves put into place appropriate return to work protocols to ensure the health and safety of the employees that interact with them?
How Will Employees be Called Back to Work?
- For employees on layoff, is a notice of recall required? There are some jurisdictional differences - for example, a written notice of recall is a best practice in Ontario but a requirement in Alberta. This may also be governed by the terms of a collective agreement in a unionized employment.
- Will all employees be recalled at the same time or will be it be staggered or phased in?
- When selecting employees for recall, businesses should review recall procedures in their collective agreement(s), which may involve a seniority analysis, as well as an assessment of the work and positions available, and the skills, ability, qualifications and training required to perform the work.
- Consideration should also be given to the possible consequences of not recalling a particular group of employees back to work, including the lapsing of permitted statutory layoff periods, statutory termination obligations (subject to possible unforeseen circumstances arguments), human rights claims (if selection for recall was based on or informed by improper human rights grounds) and possible constructive or unjust dismissal claims.
- Prior to arriving back in the workplace, what training do employees need in order to be prepared for re-entry, including training on any infection prevention policies and protocols put in place (e.g., physical distancing and enhanced hygiene measures) or the use of PPE, where applicable?
- If applicable, will mandatory PPE be distributed in advance to employees or will they pick it up when they attend at work? Will they be permitted to take it home or use it outside of the working environment?
What Other Health and Safety Protocols Should be Considered Upon Re-Opening?
- As a general resource, the Canadian Centre for Occupational Health and Safety has prepared a series of tools to help businesses plan for, prepare, prevent and protect against infectious disease outbreaks in the workplace. They are available online here.
- Employees should be reminded that in addition to the employer's obligations, they also have a legal obligation to take the necessary measures not only to protect their own health and safety in the workplace but also to ensure that they do not endanger the health and safety of other persons in the workplace. They have a role to play in identifying and eliminating risks or hazards in the workplace and they should tell an employer representative if they see any risks or hazards or have suggestions.
- Employees should also be reminded to follow then-current public health and occupational health and safety guidelines regarding continuing physical distancing expectations, self-monitoring guidelines, travel restrictions and self-isolation guidelines, as well as clear reporting directions for any employees who have a confirmed case of COVID-19, are exhibiting symptoms of COVID-19, have travelled outside of Canada, or have come into contact with someone who has symptoms. Public Health Ontario's guideline on how to self-monitor, for example, can be found here.
- Other personal hygiene guidelines to consider, subject to updated public health guidelines, include handwashing, the avoidance of touching of the face with unwashed hands, sneeze and cough protocols, and the avoidance of sharing of food, drinks, utensils, etc. Public Health Ontario's guideline on how to appropriately wash hands, for example, can be found here, while the Government of Canada's hygiene guideline is available here.
- Reporting requirements should be clearly communicated and explained to employees, including what information they are required to communicate to the business; how they are to communicate that information to the business; who that information should be communicated to within the business; and when they are expected to not report to work. Employers should take into account the applicable governmental recommendations.
- Employers should consider protocols on what information will be required in order to allow an employee back into the workplace following either a self-isolation or quarantine period resulting from suspected or known exposure or a confirmed positive test (i.e. mandatory absence period, written medical note from treating physician, etc.).
- Employers should be prepared to implement and document appropriate disciplinary measures for non-compliance with new or adapted measures as a duly diligent step in their overall health and safety program, however consideration will need to be given to whether non-compliance is arising from employee misconduct or is grounded in a possibly legitimate privacy, human rights or work refusal-related concern.
- Remember that occupational health and safety laws and many of the governmental guidelines are minimum standards, which may in certain circumstances be appropriately exceeded to protect the workplace. Consultation with the right decision-makers (i.e., the pandemic response team discussed above, is critical to ensuring the workplace is safe and that the applicable legal and practical issues are being sufficiently addressed.
Additional Online Resources
In addition to the links contained in the blog above, the following is a selection of additional resources available as of
April 29, 2020that may be of assistance as employers plan for the return to work:
- World Health Organization - Getting your workplace ready for COVID-19 (March 19, 2020) (link)
- CDC - Resources for Businesses and Employers (link)
- Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (link)
- Prepare your Small Business and Employees for the Effects of COVID-19 (link)
- Cleaning and Disinfecting Your Facility (link)
- Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (link)
- Interim Guidance for Conserving and Extending Filtering Facepiece Respirator Supply in Non-Healthcare Sectors (link)
- General Business Frequently Asked Questions (link)
- U.S. - Occupational Safety and Health Act - Guidance on Preparing Workplaces for COVID-19 (link)
British Columbia Resources
- Handling Absences & Other Disruptions (link)
- WorkSafeBC - What employers should do (link)
- WorkSafeBC - Preventing exposure to COVID-19 in the workplace: A guide for employers (link)
- COVID-19 Information - Workplace Guidance for Business Owners (link)
- COVID-19 Information - Guidance for Managers and Operators of Industrial Work Camps (link)
- COVID-19 Assessment Tool for Health Care Workers (HCW) And Those Involved in Public Health Enforcement (PHE) (link)
- Help prevent the spread (link)
- Public Health Ontario - Physical Distancing (link)
- Public Health Ontario - How to Wash your Hands (link)
- When and How to Wear a Mask - Recommendations for the General Public (link)
- Cleaning and Disinfecting for Public Settings (link)
- Public Health Ontario's guideline on how to self-monitor (link)
- Public Health Ontario's guideline on how to appropriately wash hands (link)
- Travel Restrictions for Quebec Regions during COVID-19 (here)
- Public Health Recommendations - Instructions for People with COVID-19 Symptoms (here)
- Government of Quebec - Information Guide on Wearing a Mask in Public (here)
- Preventing Transmission of Viruses and Bacteria (link and link)
- Gradual resumption of activities under the COVID-19-related Pause (link)
This update is part of our continuing efforts to keep employers informed about COVID-19. Check our COVID-19 hub and our McCarthy Tétrault Employer Advisor blog for further updates. If you are an employer and need assistance, please reach out to any member of our National Labour & Employment Team.
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Article orignally published on 29 April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.