While there is no public health and Government decision in Ontario to reopen ALL workplaces yet, there is a sense of cautious optimism underlined by the re-opening of street fronted retail stores and other establishments, with appropriate precautions. It is key to note that the declared provincial emergency is still in effect till June 30th 2020, and things can change fairly rapidly.
Over the last few days we’ve see the province doubling limit on public gatherings, more businesses are set to reopen over the next few days and a significant number of public health unit regions are being allowed to move into Stage 2 on Friday, June 12, as the province’s next stage of the COVID-19 recovery plan.
Employers should however, strongly consider temporarily holding off on reopening unless they are ready to protect employees including those at higher risk for severe illness, including those 65 and older and people of all ages with underlying medical conditions. As an employer, you have a legal duty to protect your employees from hazards they may encounter in the workplace. The key question to consider: “How do you provide a safe workplace during a pandemic?” Communication will be critical during this period as managers will have to engage their employees, understand concerns of any, and address then in a timely manner in conjunction with organizational senior leaders/owners.
Recalling Employees who were Temporarily Laid Off
When recalling staff in Canada, employers must understand what applicable provincial employment standards legislation says on the subject, as well as how long they are legally able to temporarily layoff an employee before it is deemed to be a termination of employment. In Ontario, the maximum duration of a temporary layoff as outlined in the Employment Standards Act, 2000 (ESA) is 13 weeks in a 20 consecutive week period. In some scenarios, it can extended to “less than 35 weeks in a 52 consecutive week period”, if the employer continues to provide some form of compensation as set out in the ESA, such as substantial payments or continuation of benefits etc. to employees.
Note that with the introduction of Ontario regulation 228/20, the province has amended the Employment Standards Act (2000) temporarily so that moving forward, employers have flexibility to temporarily reduce or eliminate hours of work or wages due to COVID-19 and this would NOT be deemed a layoff, termination, or constructive dismissal under the ESA, even if it extends beyond the time allowed for temporary layoffs under the statute. In these situations, the employee is deemed to be on a leave of absence.
The argument can be made however that while this new regulation temporarily removes the right of employees to claim constructive dismissal under the ESA statute due to reduction or elimination of hours due to COVID-19, employers should note however that it DOES NOT remove the right of the employee to claim damages under common law. Though it is hard to reconcile someone being on a Leave of Absence under the ESA while at the same time being deemed to have been constructively dismissed pursuant to common law, the regulation isn’t intended to impose dramatic changes to employee rights.
Recall notices should be in writing and sent to the employee via read receipt certified email AND registered mail to ensure confirmation that the employee has personally received the recall notice. In the said notice, the employer should clearly specify that the temporary layoff will end on a certain date, and that the employee is expected to return to work by that date. The selected recall date should ideally give employees a few days to prepare for returning to work – some employees may need to make childcare arrangements etc.
The recall notice should inform employees that, if for some reason the employee is unable to return to work by the specified date, they should contact the employer to discuss an alternative return to work date. Finally, the employer should state in the recall notice that the employee will be returning to the same position and responsibilities they held prior to being laid off.
Work Refusals
Employees may wonder: “Do I have to go in to work?” The short answer is yes, with caveats, unless the employee is on a clearly communicated high medical risk situation clearly articulated and substantiated by a treating physician, on an approved leave of absence, is utilizing accrued vacation time, on a managed disability absence or under the criteria set out in the Provincial Infectious Diseases Emergency Leave, or, on an employer mandated layoff.
An employer CAN require employees to return to work, as long as the employer’s business is allowed to be open as per provincial regulations. The employer may also have to demonstrate that it has complied with occupational health and safety requirements, safe workplace guidelines, and the recommendations and requirements of Ontario public health. Because once an employer has met/exceeded those, it’s going to be hard for the employee to argue, ‘I just feel unsafe,’ because the employer’s done whatever it’s required to do, whatever it’s been recommended for it to do to set the right scene to require the employees to return to work.
If there is an unresolved issue employers must escalate to the Ministry of Labour and get the case reviewed. Once this review is complete the ministry will issue an order and the employer can proceed accordingly based on the order.
Employers should keep in mind, however, that for some people this has taken an emotional toll. They're afraid; they're grieving. If you have long-standing loyal employees, you should try to handle those situations with compassion and see things from their perspective. Documented communication is key.
Reopening / Return to Work Considerations & Best Practices
To reassure employees that their health is a priority, Employers must communicate all the safety steps being taken, starting with a clear set of precautions in place for reopening or bringing employees back to the office:
Consider modifying travel and commuting business practices.
Promote telework for employees who do not live in the local area, if/where possible & feasible.
Re-train all employees on health and safety protocols.
Update existing employee handbooks outlining changes to polices or introduction of new policies that spell out from the start the expectations and responsibilities for employees and employers.
Evaluate on a consistent basis and establish what will be in the best interest of employees and the organization in context to current pandemic scenario.
Each workplace is unique and will have different solutions for keeping employees appropriately distanced, but there are some common approaches that can be utilized, such as:
marking off 6-foot spacing with carpet or tape.
designating hallways and stairways as one-way.
adding plexiglas barriers at workspaces.
propping open doors to eliminate the need to touch handles.
installation of alcohol hand sanitizer pumps at high traffic, conspicuous areas in the workplace.
making available disinfectant wipes or spray bottles for employee use for high touch surfaces.
cleaning sanitizing high touch surfaces in the workplace with disinfectant/water mix & paper towel(s).
provision of Personal Protective Equipment (PPE) including latex gloves and/or masks as applicable.
reiterating & encouraging the importance of frequent hand washing, minimal face touching.
staggering shifts at the workplace to reduce number of staff in the office at the same time.
informing returning workers of enhanced premises cleaning and sanitizing being done (as applicable).
getting tested, following public health guidelines & staying home when sick with symptoms of COVID.
The most critical aspect in this exercise will be communication. Employers should be prepared to answer questions regarding the workplace, meetings or shifts. Look at solutions like web meetings, videoconferencing, even if employees are in the workplace.
Other Return to Work Considerations
It is also recommended that employers discuss with employees, to the extent practical, any changes to health and safety policies and sick-time policies.
If you can help people feel comfortable about coming back, it will be easier for them to say yes. Understand that, as much as people want to work, they're scared. Being aware of that and being consistent, compassionate, flexibile and patient is quite important.
Employers should also consider “pandemic policy amendments” to existing workplace H&S policies, look at implementing PPE Assessments & Recommendations, Implement training for employees & supervisors where necessary and consider where feasible, “Work from Home” policies.
Closing Thoughts
This blog article is not meant to be an exhaustive review of ALL post COVID return to work best practices. There might be some that you can consider implementing that work best for your workplace that are not outlined here.
The province of Ontario has provided employers with online resources so they can return employees back to work in a safe manner. These are available here and include sector specific guidance from health and safety associations that the Ontario government works closely with. These resources are available for different sectors and are aimed at helping employers and workers better understand how to prevent the spread of COVID-19. It includes a series of technical sector guidance documents to further support employers and workers, which are searchable by sector/topic. Remember being reasonable is key.
In closing, it is key for employers and employees to realize the importance of ample precaution, due diligence and respective responsibilities. Consider how different this post COVID playing field is from the one we’ve left behind from a few months ago.
If you’re a Beneplan client and have questions or need support on these and other people issues, please reach out to Beneplan’s HR Consultant at 1 800 387 1570 x 268 or via email at hr@beneplan.ca