PART 2: COVID-19 and the Workplace: Key Considerations for Employers

*This is part two of SV Law’s COVID-19 and the Workplace: Key Considerations for Employers. It will be most helpful to read part one here first.

On March 11, 2020, the World Health Organization (WHO) declared the outbreak of the novel coronavirus (COVID-19) a global pandemic.

On March 17, 2020, the Ontario provincial government issued an order declaring a state of emergency in response to COVID-19 under section 7.0.1(1) of the Emergency Management and Civil Protection Act. 

Most Ontario employers will be directly or indirectly affected by the COVID-19 pandemic which poses a range of challenges in the workplace. As the effects of COVID-19 are evolving on a daily basis, it is important that employers adapt, stay informed, and regularly review their response to the pandemic.

LEGISLATIVE AMENDMENTS 

The Ontario Legislature has passed the Employment Standards Amendment Act (Infectious Disease Emergencies), which provides provide job-protected leave to employees need to be away from work due to COVID-19. The act provides job protection for employees unable to work for the following reasons:

• The employee is under medical investigation, supervision, or treatment for COVID-19.
• The employee is acting in accordance with an order under the Health Protection and Promotion Act.
• The employee is in isolation or quarantined in accordance with public health information or direction.
• The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
• The employee is prevented from returning to Ontario because of travel restrictions.

As such, Ontario employers are not permitted to terminate an employee who has been unable to work due to any of the above reasons. That said, employers are not obligated to pay employees during their time away from work unless required by the employment contract or employment policies (i.e. paid sick day policy, if any).

The new legislative amendments also make it clear that an employee will not be required to provide a medical note to take the leave. However, the employer may require the employee to provide other evidence that is reasonable in the circumstances.

These measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. These measures will remain in place indefinitely. 

These legislative amendments do not apply to people in sectors that fall under federal jurisdiction, including employees working for banks, airports, inter-provincial and international rail, and federal crown corporations.

Further information about the provincial employment legislation amendments can be found on the Ontario Ministry of Labour website.

HEALTH AND SAFETY CONSIDERATIONS 

On March 23, 2020, the provincial government announced that all “non-essential” businesses would be forced to close as of 11:59 p.m. on Tuesday, March 24, 2020. An up-to-date list of essential businesses is posted on the government’s website. 

For businesses that are deemed essential and can remain open, the employer will need to ensure that it is taking all reasonably necessary precautions to keep workers safe. While many employers will move to a work-from-home model, which will eliminate concerns about the exposure to and spread of COVID-19 in the workplace, this is not possible across all industries and employee roles. 

Ontario’s Occupational Health and Safety Act (OSHA) imposes a general duty on employers to take reasonable precautions to protect the health and safety of workers in the workplace. It is incumbent upon the employer to undertake a hazard assessment to identify potential safety risks and dangers in the workplace and respond accordingly. The following key steps should be used to ensure that you are meeting the requirements of OSHA during the COVID-19 pandemic: 

1. Identify and Assess Risks

Employers must consider risks in the workplace and where they are coming from. This assessment will vary from workplace to workplace, however, employers may consider the following:

• Do workers work in close proximity to one another and, if so, is it necessary? Can a work-from-home policy reduce the number of workers in your workplace which may allow you to have individuals spread out? 

• Do workers interact with the public? What precautions can be taken to mitigate risk of exposure to COVID-19 (e.g. installing glass barriers between the worker and the public for customer service roles)? 

• Are there surfaces and/or equipment that workers come into contact with while performing their job duties? Can physical exposure be reduced or can increased cleaning measures be implemented?
• Can personal protective equipment (PPE) be used for worker protection?

2. Develop Clear Written Policies and Procedures that Address Risks 

Employers need to stay informed and proactively develop workplace policies to protect workers as the COVID-19 pandemic evolves. Some of these policies may include: 

• Increased hygienic practices. Workers must be provided with proper means of sanitizing their hands regularly around the workplace. Sanitization supplies need to be closely monitored and replenished as needed.

• Daily screening of workers attending for work should be considered as the employers should ensure that potential COVID-19 carriers are not intermingled with co-workers. Employees should be advised that they are not to attend the workplace if feeling unwell or if they have been in close contact with someone who has tested positive for COVID-19.

• Visitors (customers, suppliers etc.) should be monitored for symptoms of COVID-19 prior to attending the workplace. 

• Workers returning from travel must be required to self-isolate for a period of time that is consistent with public health directions (currently set at 14 days).
• Meetings should take place on a virtual platform where possible. 
• Physical barriers should be installed where needed. 
• PPE should be made available to the workers where appropriate 
• Leave/absence policies should be revised to address, facilitate, and encourage quarantining or self-isolation.

• An emergency response policy should be created so that prompt action can be taken in the event if an outbreak in the workplace. 

3. Training & Monitoring New Policies and Procedures

If new policies are being rolled out into the workplace, the employer should ensure that these policies are communicated clearly and that any required training is delivered in a timely and safe fashion. Employers should consider whether training can be delivered virtually to avoid congregating workers.

Compliance with all policies should be monitored, and non-compliance should be addressed immediately.

Employers should ensure that they have a means to communicate with workers so that feedback on the new policies can be communicated. 

CONCLUSION 

There is no doubt that our community and most businesses are facing very difficult times. Our team of 32 lawyers at SV Law are here to help you navigate the issues you may face during the COVID-19 pandemic. 

You are encouraged to contact any of our lawyers to discuss your issues and questions.