Written by Carl Cunningham and John Gilmore
As we better understand the challenges associated with COVID-19, attention has turned to reopening the Canadian economy and retuning to work. This, in turn, raises questions about the steps that employers should be taking to train their employees and adapt their physical workplaces in order to continue operating (if they did not shutdown during the pandemic) or return to work (if they did shutdown) in a COVID-19 world.
As employers across the country consider these challenges, one thing is absolutely clear—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. Every business is unique, and there is no one business continuity or return to work plan that is recommended for all. Instead, employers must consider a range of issues in the context of their particular business needs. The purpose of this blog 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. Bennett Jones is available to assist you and your business as you adjust to the “new normal” of COVID-19.
Risks Associated with Operating a Business During COVID-19
In response to the spread of COVID-19, governments across Canada issued public health directives and emergency orders, including closure orders for many businesses in non-essential industries. As the economy gradually reopens, these closure orders are being removed. However, the timing for reopening of specific businesses varies from industry to industry, and from jurisdiction to jurisdiction. Employers who were required to shutdown due to COVID-19 should understand when their business, in their province or jurisdiction, is permitted to reopen, and must not reopen until they are legally permitted to do so. Failure to comply with a closure order can lead to significant liability for businesses including, for example in Ontario, a fine of up to $10,000,000 under the Ontario Emergency Management and Civil Protection Act, and personal liability for directors and officers of the business.
Employers should also 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, employment policies and (if they are unionized) collective agreements, and ensure their business continuity and/or return to work plans take these obligations into account.
In addition to the legal risks associated with carrying on business during COVID-19, there are operational risks as well. In particular, if an employer fails to take adequate steps to prevent the spread of COVID-19 in the workplace, the risk of an outbreak among employees increases. This, in turn, could necessitate the adoption of even stronger preventative measures, or reclosing parts of the employer’s business, or the whole business, for an additional period of time. On the other hand, if the anti-COVID-19 measures adopted by an employer are too restrictive or onerous, the employer’s business operations may suffer as a result.
Preliminary Steps Before Developing a Business Continuity or Return to Work Plan
Before an employer develops its business continuity or return to work plan, there are a number of preliminary steps that should be taken.
- First and foremost, determine who the decision makers are that will be responsible for designing and implementing the plan. Steps involved in this process should include:
- plan preparation, which includes assessing your workplace and developing an operational/return to work plan that clearly demonstrates you have taken “every reasonable precaution in the circumstances” to prevent the spread of COVID-19;
- plan implementation, which includes developing an effective communication and training strategy for employees;
- monitoring compliance with, and the effectiveness of, the business continuity/return to work plan, which includes regular review and consideration of applicable government and public health guidance; and
- responding to issues and problems as they arise and adapting the business continuity/return to work plan as necessary to meet unforeseen challenges.
- Consider if the decision makers responsible for your business continuity/return to work plan have the necessary expertise, or if they require the assistance of experts such as a medical professional, occupational health and safety specialist, communications expert, design consultant or other technical specialist. In addition, consider if anyone other than the designated decision makers should be consulted about the business continuity/return to work plan, such as, for example, a joint health and safety committee or, in the case of a unionized workplace, possibly the union.
- Consider what resources are available to monitor the latest updates regarding COVID-19, and business operation/return to work guidelines for employers. For example, federal and provincial governments have all established dedicated COVID-19 websites and online resources that are regularly updated with public health and related information. Guidance for employers in each province and jurisdiction to limit the spread of COVID-19 in the workplace has now been posted to these locations. In addition, federal, provincial and some municipal public health authorities have established websites and links that are regularly updated as information becomes available. Most provincial occupational health and safety authorities have established similar online resources. Lastly, many industry associations have developed or are preparing return to work recommendations and best practices specifically tailored to their industry. All of these resources should be regularly consulted and considered by the designated business continuity/return to work decision makers for your business.
- Finally, consider timing for the ramp-up or reopening of your business. In particular, determine when your business is legally permitted to reopen. For employees who have been laid off, consider how they will be recalled and confirm whether any advance notice of recall is required in your jurisdiction. Also consider whether all employees will return to the workplace at the same time, or if the return to work will occur in stages, with some employees returning before others. For example, will some employees who are able to work or continue working remotely from home be permitted or required to do so, while other employees return to the physical workplace? If a staggered return to work is contemplated, consider which employees will return first and whether this creates any constructive dismissal or other issues under existing employment contracts. Also, if there is a collective agreement with a union, review the recall and seniority provisions to determine if they comply with the business continuity/return to work plan, or if changes are necessary in consultation with the union.
Issues to Consider in Your Business Continuity or Return to Work Plan
There are a number of issues that should be considered in any business continuity or return to work plan. These include the following:
Communications and Training
Consider how the business continuity/return to work plan, and employee responsibilities under the plan, will be communicated to employees. For example, will there be any communication with employees regarding the plan before they return to the physical workplace? How will questions or feedback from employees be handled? Will you hold regular health and safety meetings to review COVID-19 related procedures? Will any signage be needed in the workplace to ensure employees understand their obligations in particular circumstances? With respect to training, consider whether anything is required so that employees know their obligations in terms of sanitizing, physical distancing, use of PPE and other matters. Consider whether managers require any special training to administer the business continuity/return to work plan. Finally, make sure your plan states that you will continue to adapt and make changes as necessary, and communicate those changes to employees.
Self-Reporting Requirements and Privacy Considerations
Ensure clear guidelines are established so that employee know their responsibility to self-report a positive COVID-19 diagnosis for themselves or their family members, or where the employee or a family member exhibits symptoms of possible COVID-19, or where the employee has come into contact with someone else with COVID-19, or where the employee is subject to travel-related quarantine restrictions, etc. Consider if employees should be required to perform a self-assessment or complete a questionnaire prior to attending at work, or provide any other information to the employer such as COVID-19 test results. Consider if other forms of assessment such as temperature checks will be carried out at work. Consider if employees will be required or encouraged to download a government approved contact tracing app onto their cell phone, and make information from the app available to the employer on request. Finally, consider what privacy protections are necessary in order to deal with any COVID-19 related personal information that is received by the employer, and whether there are any privacy limits on the information that can be collected.
Sanitizing the Workplace
Implement a thorough cleaning of the physical workplace before employees return to work, and communicate this to employees. Consider if the initial cleaning should be carried out by your regular cleaning contractor, or if a specialized service provider is necessary. Once employees return to the physical workplace, consider what cleaning schedules and protocols are necessary. Consider whether cleaning and disinfecting supplies such as alcohol wipes, hand sanitizer dispensers and wash stations will be provided for employees, if the availability and location of these supplies is adequate, and what rules will be enforced concerning their use by employees and third parties present in the physical workplace.
Personal Protective Equipment (PPE)
Consider whether employees will be required to use PPE, and if so which employees, in what circumstances and what specific PPE. For example, will employees who take an elevator to and from the office each day be required to wear a face mask during their elevator trips? Will PPE be provided or made available to employees required to use it, and if so what standard of PPE will be considered adequate (for example, will an N95 mask be considered necessary in certain circumstances, as opposed to another form of face mask). Will employees be permitted to use their own PPE if they prefer and, if so, are there any standards applicable here?
Regular Hours of Work, or Shifts and Staggered Start Times?
Will regular hours of work be maintained for all employees, or will shifts or staggered start times be required in order to reduce the number of employees at work at a given time, and promote physical distancing? If staggered start times or shifts are necessary, review any union collective agreements to determine whether the proposed work schedule is in compliance, or if discussions with the union will be necessary. Consider your obligations under applicable employment standards and human rights legislation if there are any employees for whom the proposed shift or start times create a particular hardship due to family obligations or other factors.
Entry and Exit Points
Consider entry and exit points to the physical workplace, and whether these access points are controlled by the employer or a third party such as a landlord. If the landlord or other third party controls the access points, consult with them to determine what their plan is to reduce to the risk of COVID-19 exposure for people using the access points, and whether the proposed measures are too lax or too onerous in the circumstances. For example, will there be limits on the number of people allowed to use the elevator at one time, and are those limits practical in the circumstances? How will lineups and bottlenecks at access points (for instance, people waiting to use the elevator) be dealt with, and how will physical distancing be maintained in these circumstances? Consider if the number of access points to the workplace should be restricted so that the number and identity of people in the workplace can be better monitored and controlled. Consider how any such measures comply with fire code and other safety regulations. Consider if any special monitoring equipment such as temperature checking devices will be used at access points, and what rules apply to that. Finally, consider how deliveries and other shipping and receiving issues will be dealt with, and whether items delivered to the workplace should be sanitized and how.
Physical Distancing of Work Stations
Consider whether the physical separation of work spaces is adequate and whether any changes to the physical layout of the workplace are advisable or possible. Consider whether other measures besides reconfiguring the workplace are possible, such as reducing the density of employees in particular areas, use of plexiglass screens or other physical separation equipment or the use of directional signage and floor markings.
Consider common gathering areas such as reception areas, lunch rooms and meeting rooms, and whether any measures are required to promote physical distancing in these spaces. Consider whether all common or gathering areas in the workplace will be open, or whether some will remain closed.
Frequent Touchpoints and Common Equipment
Consider frequent touchpoints such as door handles, light switches and elevator buttons, and what steps are necessary to ensure they remain clean and disinfected. Should measures such as propping open doors be considered, and how will this work in terms of safety and security concerns, fire code regulations and other considerations? What steps will be taken to ensure that common equipment such as coffee machines, cups and glasses, microwave ovens, vending machines, water coolers and photocopiers remain clean and disinfected, and will all such equipment remain in use or will some of it be temporarily removed or shut off?
Are there any changes or improvements to the HVAC system that should be considered to improve ventilation and air circulation in the workplace?
Consider whether any measures are necessary to limit or control third-party access to the physical workplace. Consider what physical distancing, sanitization, PPE or other requirements will be imposed on third parties present in the workplace, and what steps will be taken if a third party refuses to comply with these requirements. Consider if there are any contractor employees present on site (for example cleaning personnel), what COVID-19 related rules apply to them, whether the rules are adequate and who is responsible for enforcing those rules. Consider if there are any alternatives to in-person third-party meetings that should be promoted or mandated through the use of technology (such as Zoom conferences and other virtual meeting options).
Changes to Employment Policies
Consider whether there is anything in the business continuity or return to work plan that requires your existing employment policies to be amended, or new polices to be adopted, and how those policy changes will be communicated to employees. In the case of a unionized workplace, consider whether the business continuity/return to work plan complies with any collective agreements, and whether consultation with the union is necessary or advisable in relation to the plan.
Consequences for Failure or Refusal to Comply with the Business Continuity or Return to Work Plan
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.
The list of issues above is not exhaustive, and other factors may also need to be considered depending on the nature of the employer’s business.