As vaccinations ramp up and the number of COVID-19 cases decline, employers must consider how to safely re-open workplaces. In many cases, last minute changes and announcements have left employers scrambling to prepare. The 4th wave of the pandemic has begun in Canada, and regrettably COVID-19 and its variants will continue to threaten Canadians’ health for some time.
Employers in Ontario have an obligation to provide employees with a healthy and safe workplace under the Occupational Health and Safety Act (“OHSA”). Employers can implement various measures to ensure they meet these obligations, such as vaccination policies, at work practices, and remote work policies in accordance with provincial regulations and reopening plans.
COVID-19 workplace measure #1: Vaccination Policies
A vaccination policy is recommended. Employers should implement a vaccination policy to ensure expectations are clearly communicated to employees and to support workplace decisions, such as termination. Some employers may wish to implement a mandatory vaccination policy if the nature of the workplace is one where employees cannot work remotely. It is especially critical when physical distancing cannot be maintained. Others may find an incentive-based vaccination policy more fitting. Mandatory vaccination policies are more appropriate for workplaces where employees are in close contact with each other (i.e. warehouses) or in roles where they interact in-person with the public (i.e. Dental Offices). On the other hand, an incentive-based vaccination policy may be sufficient in workplaces where employees can physically distance and do not closely interact with the public.
While employers can likely make a Health Canada approved COVID-19 vaccination a pre-requisite to attend work, the vaccination policy must align with applicable human rights legislation. This applies to both mandatory and incentive-based vaccination policies. In both cases, employers can expect workplace disputes, as some employees will refuse to be vaccinated due to religious or health reasons, while other employees may just be anti-vaccination. Ontario’s Human Rights Code (the “Code”) will protect some employees, such as those with transplants who may be immune suppressed, refusals to get vaccinated. A clearly communicated vaccination policy will help to protect both employers and employees while mitigating conflict.
In addition to these policies, employers may wish to provide information to employees related to vaccines and their effectiveness by posting information from Health Canada or provincial health authorities.
COVID-19 workplace measure #2: At Work Practices
In addition, or alternative, to a mandatory vaccination policy, employers should maintain current workplace health and safety practices, such as rapid testing, mandatory masking, and physical distancing.
Further to the legally required protocols, employers may wish to consider recommended or suggested best health practices, such as improving ventilation systems and re-organizing common areas. Such an approach is consistent with their obligation to take all reasonable precautions for the health and safety of employees.
Ontario recently announced that they are dramatically ramping up the delivery of rapid test kits. A robust rapid testing program will help keep COVID-19 out of the workplace and ensure businesses and workplaces can stay open. Rapid testing technology has vastly improved over the past year, and tests will now yield a result within 15 minutes.
Rapid testing will be particularly important if an employer has vaccine-hesitant employees, or if vaccination rates begin to slow down. It should be used alongside mandatory masking and physical distancing.
Employers must bear in mind that, while rare, some employees may have health issues or a disability preventing them from wearing a mask. These issues could be protected by the Code. Physical distancing measures, however, are easy to implement, and should not face much resistance in the workplace.
COVID-19 workplace measure #3: Remote Work Policy
Under Step 3 of Ontario’s reopening plan, employees are no longer required to work from home. Regardless, employers should consider implementing a remote work policy. The Conference Board of Canada says that less than 20% of Canadians were working remotely before the pandemic, which is a stark contrast to the 60% of employees that are now working remotely. Many employees have come to enjoy the flexibility that remote work offers. Accordingly, employers should expect a rush of remote work requests. Indeed, a majority of employees surveyed have expressed an interest in remaining remote with one survey reporting 54% would quit if forced to return to work. The pandemic has transformed business models for many companies where remote working is seen as driving growth and providing significant savings on the cost of real-estate.
A remote work policy would also assist employers with management issues, such as recalling employees to work in the event of performance issues. Further, a remote work policy clearly communicates that remote work is not a right, but rather a temporary practice subject to the employer’s discretion. A good remote work policy should set out the employer’s right to recall employees and productivity expectations. For instance, employers may want to ensure that employees track hours of work and regularly check in with supervisors. The policy should set out how work-related expenses will be managed. Most Canadian employers have established a preference for reimbursing employees on expenses with proof of purchase.
As always, any workplace policy is subject to the applicable human rights legislation. Some employees may have Code protected reasons for requiring remote work, such as a disability or an obligation to supervise their children if they are doing online learning.
Conclusion
COVID-19 has created unprecedented complexities for employers. This remains true as employers look to re-open their workplaces. Robust policies related to vaccination, at work practices, and remote work, will go a long way to ensure a smooth re-opening process.
The Hum Law Firm continues to monitor legal developments related to COVID-19. We encourage you to contact us immediately for legal assistance.
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Below are provincial reopening plans:
Reopening Ontario | Ontario.ca
Reopening plan | Gouvernement du Québec (quebec.ca)
BC’s Restart: A plan to bring us back together – Province of British Columbia (gov.bc.ca)
Public health measures in effect | Alberta.ca
Province of Manitoba | 4-3-2-One Great Summer Reopening Path (gov.mb.ca)
Re-Open Saskatchewan Plan | COVID-19 | Government of Saskatchewan
A Path Forward: Yukon’s plan for lifting COVID-19 restrictions | Government of Yukon
Emerging Wisely 2021 | GNWT’s Response to COVID-19 (gov.nt.ca)
Nunavut’s Path | Government of Nunavut
Moving Forward Step 1 | Government of Prince Edward Island