Return to Work from COVID-19

Part 1: Business' Occupational Health and Safety Duties


Not Quite Business as Usual

Provinces across Canada are each slowly loosening COVID-19 emergency measures, in stages. Businesses are gradually being allowed to re-open, provided they comply with strict public health measures. As businesses prepare to re-open it is crucial that they meet their obligations to provide a safe workplace. This article focuses on such occupational health and safety obligations, which employers and employees are well advised to stay atop of.


The General Framework under the Occupational Health and Safety Act:

Each province has applicable occupational health and safety laws. In Ontario, the Occupational Health and Safety Act (the "OHSA") imposes general obligations on employers to maintain a safe and hazard-free workplace. Specifically, s.25(2)(h) of the OHSA requires that employers "take every precaution reasonable in the circumstances for the protection of a worker".

The Ontario Court of Appeal in Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 confirmed that s.25(2)(h) of the OHSA imposes a sweeping obligation on employers to take all reasonable steps to protect workers. In determining what is reasonable, the Court will consider all of the circumstances of the workplace, for example, the riskiness of the work and the training received by the employees.

Although the OHSA imposes a heavy burden on employers, it does not require employers to anticipate every possible failure or accident that might occur. Rather, it requires employers to assess the risks in their workplace and take every reasonable step to protect its employees in light of those risks.

If an employer does not take adequate steps to protect the health and safety of its employees, the employees may be entitled to refuse to work. An employee may refuse to work if they reasonably believe that their health or safety is endangered at the workplace.

The employer must investigate the work refusal, and if possible, take steps to resolve the safety concern. Regardless of the outcome of the investigation, employers are not permitted to discipline or terminate an employee who refuses to work on the genuine belief that their health or safety is in danger.


COVID-19 Health and Safety Obligations:

What does all that mean for employers looking to re-open their workplaces amidst an ongoing, global pandemic?

Some guidance can be gleaned from the recent decision in Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467. In this COVID-19 related case, the Ontario Superior Court of Justice ordered long-term care homes to provide nurses working at their facilities with proper protective equipment. In making this order, the Court emphasized that the "precautionary principle" is applicable. Developed in the aftermath of the SARS outbreak in 2003, the "precautionary principle" applies where health and safety are threatened, even if there is uncertainty about the relationship between the activity and the harm. In such cases, every reasonable precaution must be taken to protect against the unknown.

This means, employers must make every effort to limit the risk of COVID-19 exposure in the workplace. Accordingly, before employees return to the workplace, employers are encouraged to develop a clear and detailed plan of action on how they will minimize COVID-19 related risks in their workplace. Return to work plans should be flexible and specific to the unique needs of the workplace. Employers should consider all options, including continuing work from home measures where possible or adopting modified work schedules. Copies of this plan should be provided to employees in advance of their return to work.

Upon employees returning to work, employers should continue to carefully monitor the situation and adapt as needed. Any changes in protocol or practices should be clearly communicated to employees.

By acting in an organized and proactive manner, employers will not only help protect their employees from harm, but will also establish a document trail that can be relied upon should any issues arise. For example, if an employee refuses to work due to concerns over COVID-19, it will help the employer demonstrate the measures in place to safeguard the employee's health and safety. As always, employers are encouraged to speak to their employment lawyer if they are facing workplace refusals.

In drafting and implementing a plan of action, employers should follow all applicable guidelines from the public health authorities. Generally recommended measures include:

•Educating workers on the virus and how to reduce its spread

•Establishing a clear policy that workers must follow if they get sick, have symptoms, or otherwise are exposed to the virus

•Posting health and safety signage

•Implementing physical distancing - ensure all employees are at least 6 feet (2m) apart

•Increasing sanitation and hygiene measures

•Providing personal protective equipment (if necessary)

•Adjusting production and schedules to reduce employee contact, for example, staggering lunch breaks


There is no one-size fits all solution. The appropriate protective measures will vary depending on the nature of the business and the industry. Further recommendations, including sector-specific guidance, can be found on the following webpages:

•Ontario Government - Resources to prevent COVID-19 in the workplace

•Public Health Ontario - COVID-19 Public Resources

•Government of Canada - Coronavirus disease (COVID-19): Guidance documents

•The Canadian Centre for Occupation Health and Safety - Pandemic (COVID-19) Tip Sheets


Conclusion:

As businesses begin to re-open, employers must be alert to their duty to keep their employees safe. Before resuming business as usual, employers should carefully consider how they can adapt their practices to best protect their employees. For employees' rights on return to work or refusal to go back, read Part 2 of this series.

Also read Parts 3 and 4 of this Return to Work from COVID-19 series.

Lee Workplace Law would be happy to answer questions you may have during this tricky time.


*Article written with the assistance of Hannah Goranson, Student-at-Law