The impact of COVID-19 on Canadian business, employees and associates is unprecedented and the new business as normal has in some circumstances forever changed. Digital Lawyers is here to help Employers and Employees navigate the work from home environment as well as the return to the workplace.
Developing policies and practices to:
First, an employer must determine whether they can legally reopen their physical workplaces, based on current government orders and restrictions, and each province’s plan for reopening the economy. Each province is loosening restrictions, and providing varying levels of guidance, which will continue to evolve. Click here for a summary of the current announcements by various levels of government within Canada.Any breach of government orders could expose an employer to fines, and potentially increased OH&S compliance risk.Once employers have determined that they can legally reopen their physical workplaces, employers will need to consider whether their workplaces can be opened safely. This exercise consists of (i) assessing the workplace and determining whether the employer is able to satisfy its duty to provide a safe and healthy workplace by implementing controls to address the hazard of COVID-19, and (ii) implementing those controls.Workplace controls to address the hazard of COVID-19 should align with the guidelines, mandates and orders in the employer’s jurisdiction. This guide outlines the current guidance (as of the date noted at the top of this guide) available from authorities across Canada regarding the practical steps employers should implement to reduce the risk of COVID-19 transmission in the workplace. We expect all levels of governments and public health authorities will provide additional guidance over time as to additional measures employers should take to protect workers.
The first step for ensuring a safe workplace is to conduct a hazard assessment for COVID-19 transmission in the workplace, as required to comply with provincial OH&S legislation. Employers should keep in mind that they may have a duty to consult joint health and safety committees and/or health and safety representatives, and seek input from employees (including joint committees and worker representatives) on where potential transmission may occur and how they think COVID-19 transmission can be controlled.When identifying hazards and developing measures to control exposure, WorkSafeBC suggests employers conduct a walk-through of the workplace to identify specific conditions or tasks that may increase the risk of exposure of employees to COVID-19. Other workers compensation boards have issued similar guidance, which are discussed in our Quick Reference Guide for Employers.All decisions must be taken on a reasoned basis, taking into consideration governmental and public health guidance and the employer’s duty of care to its employees, and in a manner consistent with the employer’s workplace health and safety policies. Ensuring that all decisions related to workplace health and safety are properly documented and reasonable is also important.
Employers should implement engineering controls (i.e. measures for addressing a workplace hazard by either removing the hazard or introducing a barrier between the hazard and the worker) and administrative controls (changes in workplace policies or procedures to reduce or minimize exposure to a hazard) to ensure physical distancing requirements are maintained. Employers should keep in mind that physical distancing considerations do not only apply to interactions between employees; such considerations may also apply to interactions with customers, suppliers, patients, visitors and members of the public.
Employers have a duty under occupational health and safety (OH&S) legislation to protect the health and safety of their workers. Employers are required to implement preventative measures to ensure workers are not exposed to conditions which could be harmful to their health and safety while working. Failure to ensure a safe workplace can lead to OH&S liability, including fines and penalties, and, in serious cases, criminal prosecutions.
There are a variety of unique challenges employees are facing and there are a number of reasons a worker may be unwilling or unable to return to work. Employers should consider and develop policies for the following situations:
Employers should consult legal counsel where an employee has exercised their right to refuse to work to inform themselves of the applicable procedure in their jurisdiction.Employers should ensure that their accommodation policies and practices address these issues fairly and in accordance with their legal obligations pursuant to applicable human rights legislation. As we noted in our Quick Reference Guide for Employers, human rights commissions across Canada have published policy statements and general principles regarding COVID-19 and an employer’s human rights obligations. Human rights commissions within Canada have provided very clear guidance that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).
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