May 20, 2020
Most Canadian provinces and territories have announced plans to ease the restrictions they placed on businesses and individuals as a result of the COVID-19 pandemic. Regardless of whether your business is located in one of these provinces or territories, you're probably wondering what steps you will need to take in order to safely reintroduce employees back into the workplace. Here are some key factors to consider:
Review official guidance
Read and make sure you understand applicable federal, provincial and territorial orders, directives, and guidelines that apply to your business, including information from the various provincial, territorial and local public health agencies. The Canadian federal government along with the provincial and territorial governments released a set of common principles for restarting the Canadian economy. Provincial and territorial requirements may include specific steps that businesses must take before resuming operations, and some steps may be industry and location-specific. The return to work process will likely occur in phases with certain types of businesses permitted to resume limited operations before others are allowed to do so. If conflicts exist among directives and guidelines, consider consulting legal counsel.
Independently assess your situation
Even where employers are permitted to allow employees back into the workplace, employers should independently assess whether it is safe to do so, including whether social distancing can be maintained. Employers may also want to consider having employees return to work voluntarily at first to help address employees’ needs and concerns, or returning employees to the workplace in waves, starting with the most critical workers first.
Assess your occupational health and safety obligations
Employers throughout Canada are bound by their obligations under health and safety legislation, including the general duty to take reasonable steps to protect the health and safety of their workers. This obligation includes providing employees with personal protective equipment whenever required, and providing information, guidance, and training to employees about workplace risks and best practices to limit the risks of propagation of the virus in the workplace. Employers, along with their health and safety representative or committee, will be required to perform risk assessments and implement controls prior to returning to work in order to protect employees from COVID-19.
Consider the human rights and privacy implications of any screening mechanisms
During the ongoing pandemic, privacy laws continue to apply. Therefore, employers need to be mindful of their employees’ right to privacy and that there are limits to what can be asked of employees as they strive to meet their employer health and safety obligations. Employers should consider developing a self-screening protocol for employees and visitors to their workplace to identify whether they should stay at home and monitor their symptoms for COVID-19 or not be allowed to enter a premise.
Many screening practices have significant implications for privacy and human rights. Intrusive screening practices, such as temperature checks, would likely be considered medical examinations under applicable human rights legislation and prohibited, with potentially few exceptions, such as in the health care sector. This legal risk is in addition to the ongoing scientific controversy around the effectiveness of some of these screening practices in detecting possible COVID-19 infections.
A balance needs to be struck between the necessity of any test and the general duty of Canadian employers to take reasonable steps to protect their workers. Employers who are considering the implementation of any screening or testing should consult legal counsel prior to doing so.
Require notice of potential exposure
Employers may ask employees to notify them if they’ve been in contact with someone who has COVID-19. Public health agencies request that people who are close to someone with COVID-19 and develop symptoms of the virus, self-quarantine for at least 14 days. Spell out any notification rules or guidelines in a written policy and continue to monitor guidelines for any changes in notification protocols from the local public health agencies.
Develop protocols for symptomatic employees
Develop procedures for situations in which an employee is showing symptoms of COVID-19 in the workplace. If an employee shows symptoms, separate them from other employees, send them home immediately (and as safely as possible) and direct them to speak with their doctor or local public health agencies. Fulfill any employer reporting obligations under occupational health and safety law or public health requirements. Additionally, notify other employees of possible exposure (maintaining confidentiality and not revealing who had the symptoms). Consider remedial measures to thoroughly clean any affected areas. In addition, establish and communicate protocols for returning to work after being symptomatic, following provincial/ territorial guidelines and applicable laws, if any.
Maintain social distancing
Consider steps to maintain at least two (2) meters or six (6) feet between individuals in the workplace. Employers should evaluate whether adjustments to the work environment and office norms are necessary. Options include but aren’t limited to:
- Allowing employees to telework whenever possible;
- Phased returns;
- Offering flexible work hours and staggered start-times and shifts;
- Increasing physical space between employees at the worksite (for example, opening every other cash register);
- Putting up partitions between employees;
- Increasing physical space between employees and customers through physical barriers and/or demarcating two (2) meters or six (6) feet intervals;
- Postponing non-essential meetings or events;
- Prohibiting group gatherings in the workplace and limiting access to spaces where groups tend to gather (for example, lunch rooms, staff lounges or bathrooms);
- Implementing restrictions on business travel;
- Limiting elevator occupancy;
- Delivering services remotely or delivering products through curbside pick-up or delivery;
- Discouraging hand shaking;
- Discouraging sharing tools and equipment and food and drinks; and
- Restricting visitors in the workplace.
Train employees to practice good hygiene
Enhanced disinfecting and cleaning will be required for the time being. Employers should not only ensure the cleanliness of the workplace but also train employees on safety protocols and widely communicate ways to practice good hygiene, including the following:
- Wash hands often with soap and warm water for at least 20 seconds.
- Use hand sanitizer whenever soap and water aren’t readily available.
- Avoid touching eyes, nose, ears and mouth (even when wearing safety gloves).
- Clean frequently touched surfaces (like doorknobs and countertops) with household cleaning spray or wipes.
- Cover coughs and sneezes with a tissue or the inside of the elbow.
Thoroughly sanitize the workplace
Consider more frequent cleaning and implement sanitary practices, including the following:
- Disinfect and clean the workplace and tools regularly.
- Maintain and adjust HVAC systems and increase ventilation.
- Provide tissues and no-touch disposal receptacles.
- Provide soap and water in the workplace.
- Provide hand sanitizers for when soap and water isn’t available.
- Ensure that soap and hand sanitizers are topped up at all times.
Manage absenteeism and work refusals
Consider developing procedures to address attendance issues and work refusals. Employees may fear a return to work or be dealing with special circumstances, such as an underlying health condition or child or elder care obligations that may impede their return to work. These situations must be handled in a manner consistent with applicable occupational health and safety, employment standards, privacy and human rights law.
Comply with recall requirements
Make sure all decisions related to the recall of employees are neutral and job-related, and not based on protected characteristics, such as age, race, sex or other factors unrelated to the job. If applicable, send recall letters, provide wage payment notices, and furnish other onboarding paperwork to employees who were previously on job-protected leave or laid off. Also evaluate implications on employee benefit plans and whether notices or contribution changes are needed.
Provide leave as required
Employees may be entitled to leave under federal, provincial or territorial laws for various situations related to COVID-19, even when the crisis begins to recede. For instance, employees in Ontario are eligible for an unpaid, job-protected leave of absence if there is a declaration of emergency in the province and if the employee is unable to work due to a governmental or public health order or because he or she has to provide care or assistance to a family member. Review policies, procedures, and supervisor training to ensure compliance with applicable federal, provincial or territorial laws.
Accommodate employees as required
Federal, provincial or territorial human rights legislation requires employers to accommodate individuals with disabilities or protected characteristics, unless doing so would impose an undue hardship on the employer. An employee with a disability that puts them at high risk for complications from COVID-19 may request an accommodation to reduce their chances of infection, such as asking to telework, for personal protective equipment, or for paid or unpaid leave if their job isn’t conducive to telework. Additionally, if the employer requires employees to wear protective equipment, an employee with a disability may ask for an accommodation if they are unable to comply because of their disability. Prepare to respond to such requests in compliance with applicable laws, and consider consulting legal counsel for guidance prior to responding, as necessary.
Develop a contingency plan
The pandemic is an ever-evolving situation where governments and agencies may impose industry or workplace closures to contain the spread of COVID-19. Employers should consider developing a contingency plan to respond to workplace disruptions (for example, because of a mass work refusal or because of a government-imposed workplace closure). Such a plan should consider the steps the employer would need to take - whether in response to an employer or regulator- initiated business shutdown, and whether because of an outbreak in the workplace or because of government - ordered business closure.
Each workplace is different, so develop a plan for returning to work that is tailored to your particular circumstances, follows applicable guidelines, and ensures safety for your employees, customers, and clients. Guidelines for returning to work continue to evolve; continue to monitor applicable laws and our ADP Employer Preparedness Toolkit for updates.