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.

Call us at (416)214-2329 or email info@thehumlawfirm.ca

Or you may Complete our Free Assessment Form Here

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

Reopening plan – Government of Nova Scotia, Canada

Together. Again. – COVID-19 (gov.nl.ca)

Starting July 7, 2020, it is mandatory to wear a mask or face covering in enclosed public places in Toronto. Mandatory use of masks is also referred to as Universal Masking.

The by-law requires all owners/operators of establishments open to the public to do the following:

• Create a mask policy for your establishment.
• Communicate the new policy clearly to staff/customers.
• Train all staff on the requirements of the policy and this bylaw.
• Ensure staff understand exceptions.
• Have a copy of your policy ready for inspection by authorized enforcement personnel.
• Post bylaw signs at all entrances.

With so many changes happening regarding COVID-19 and how businesses are affected. It can be easy to miss certain details. Below is a breakdown of the important details surrounding the new Universal Masking by-law in Toronto.

Effective Date:

The by-law 541-2020 comes into effect on July 7, 2020 (the “By-law“).

Mask or Face Covering Definition

While you, your customers, and your employees may choose to wear a medical mask, the by-law does not require this. It could be a cloth mask or any other face covering as long as it covers the nose, mouth, and chin without gaps.

A face shield, while it might add extra protection, is not accepted under the by-law as it does not sufficiently cover the face. It may be worn with a mask for added protection.

Identifying Exceptions to the By-law

As with any new by-laws that come into effect, there are certain groups of people who are exempt from the mandatory rules:

• Children under two years of age.
• Persons with an underlying medical condition which inhibits their ability to wear a mask or face covering.
• Persons who are unable to place, remove, or use a mask or face covering without assistance.
• Employees and operators of the Establishment who are in a designated area not for public access, or within or behind a physical barrier.
• Persons who are reasonably accommodated by not wearing a mask or face covering under the Ontario Human Rights Code.

Evidence of exemption is not required for exempted groups of people.

Temporary removal of masks

Employees and customers are permitted to temporarily remove their mask while receiving services or engaging in an athletic or fitness activity. For example, people can remove their masks while eating or swimming.

Defining Enclosed Public Places

The by-law requires mandatory masks or face coverings in enclosed public places, or indoor locations, which are accessible to the public. There is a full list of establishments that are affected by the by-law here.

A sample list of establishments include, but is not limited to:

• retail stores, convenience stores, grocery stores, bakeries
• malls, shopping plazas
• farmer’s markets (indoor sections)
• restaurants, bars* (indoors, when permitted to open)

• libraries, community centres, community service agencies
• day camps (when indoors)
• personal service settings
• faith based settings, art galleries, museums, aquariums, zoos
• event spaces: banquet halls, convention centres, arenas, stadiums
• real estate settings
• common areas in hotels, motels and short-term rentals
• entertainment facilities: concert venues, theatres, cinemas, casinos

Of course, there are certain establishments that are exempt from the by-law. That list includes, but is not limited to:

• schools
• post-secondary institutions
• child care facilities
• private & public transportation [TTC has its own bylaw]
• hospitals, independent health facilities
• offices of regulated health professionals
• apartment buildings & condominiums, common areas
• areas that is not enclosed/ indoors (e.g. restaurant patio)
• businesses that are not open to the public

Signage required

All establishments must print and post a sign outlining the by-law. This sign must be visible to the public at all times at each entrance to the establishment. A sample sign is available to download for free here: https://www.toronto.ca/home/covid-19/covid-19-how-you-can-help/covid-19-spread-the-word/?accordion=face-masks-coverings

A mask wearing policy is required

To comply with the by-law, your establishment needs to develop a mask wearing policy (the “Policy“) and have it ready and available for inspection when required. A template can be found here: https://www.toronto.ca/wp-content/uploads/2020/07/9836-COVID-19-Guidance-on-face-mask-and-covering-bylaw.pdf

If you are interested in a more detailed policy that encompasses all of the new COVID-19 changes to ensure you are compliant with all updated employment laws, HUM Law is available to work with you to draft your new policies. Contact us today.

Employee training required

All employees must be trained to enforce the new mask wearing policy at your establishment. Training should include how to respond in various circumstances such as:

• If a customer arrives without a mask because they forgot or don’t have one.
• When a customer is exempt from wearing a mask.
• If a customer wants more information about the policy and bylaw.
• If a customer becomes aggressive about the new requirement.
• If a customer wants information about the importance of wearing a mask or the science behind the use of masks.
• If a customer asks about the availability of alcohol-based hand sanitizer (70-90% alcohol concentration)
• If a customer wants to know if they can be fined.

Enforcement

It is an offence not to obey the By-law. A fine may be imposed.

Additional Resources:

• Mandatory Mask or Face Covering Bylaw overview (City of Toronto website)
• Read bylaw 541-2020
• Toronto Public Health guidance document and checklist
• Sample posters to download
• COVID-19 Economic Support & Recovery for Businesses (City of Toronto website)

8 Questions Employers Should Ask Before Reopening in the Era of COVID-19

 The COVID-19 situation is constantly changing, which means businesses need to stay on top of government decisions. As each provincial government is regularly expanding their list of businesses approved to open, more and more business leaders will be able to start earning revenue again. However, there is also concern for what they need to do to maintain the health and safety of their employees and customers.

From need-to-know regulations to consequences for failing to provide a safe workplace, here are eight questions employers should be asking.

1. Are you allowed to reopen?

The rules and schedules of Canadian provinces to reopen varies. There may be additional restrictions buried in government reopening blueprints. While the guidelines are available for public consumption, there are a number of details that employers should not overlook. Be sure to read the guidelines carefully for approved dates and health and safety measures that must be in place.

2. Are you able to follow the health and safety guidelines?

As an employer, you have an obligation to maintain a safe working environment. You will need to establish new policies and arrangements to keep employees and customers safe.

In Ontario, as an example, the provincial government published clear health and safety guidelines businesses must follow when they reopen. In preparation for reopening, you need to invest time and resources to ensure you are able to open while following proper provincial guidelines. In most cases, the consequences will be costly if you are found to be in violation of the guidelines and you open yourself up to a number of lawsuits from employees who feel like their health and safety has been put in danger or compromised.

3. Is your workplace ready for physical distancing?

Just because the government has approved some businesses to reopen does not mean physical distancing and precautionary measures also stop. In order to keep physical distancing, you may need to explore different options such as a re-arranged layout, renting a larger space, rotating or staggered days or hours when employees are in the office, or maintaining a more long term work from home arrangement. You may need to explore creating more formalized amendments to employee contracts to lay out the new rules and regulations of these policies depending on how long term you intend them to be.

4. How will you provide necessary health and safety communication and training to your employees?

If your employees are not aware of your updated health and safety policies, they don’t know how to implement them, or they simply choose not to follow them, you may unknowingly be in violation of the government mandated guidelines. An inadequate employee communication and training strategy can be costly at a time where you should be focused on reconnecting with customers and the day-to-day business growth.

5. How can you ensure your employees follow the rules?

Your new health and safe policies are not effective unless your employees follow them. As part of your reopening strategy, setting clear guidelines and consequences for your employees to follow is essential. To ensure the new policies are followed, consider drafting an employee agreement that each employee will sign before returning to work that lays out the new guidelines and their commitment to following them. It is important that all employees remain accountable for their own actions.

6. Do you have enough Personal Protection Equipment in stock to reopen?

Depending on the type of business you operate, you may need to provide Personal Protective Equipment (PPE) for your employees. PPE can be expensive and difficult to procure during this time. Not having enough PPE for your employees can lead to unsafe working conditions. Your employees may simply refuse to work, leading to the closure of your business again. Worse, you may face closure and legal consequences.

7. What are the consequences if a customer or an employee gets sick?

Before opening your business, it is prudent to conduct a risk analysis to assess your exposure if someone gets sick. Because there is so much uncertainty, there is a risk that even if you have followed the government-mandated guidelines for reopening, some might want to hold you accountable. As an employer, you could face consequences issued by government agencies, forced closure, wrongful death lawsuits, and in a worst-case scenario similar to what happened at Residence Herron in Quebec, it could lead to a criminal investigation. Outside of legal consequences, it could also be a public relations nightmare, and your reputation could be damaged beyond repair.

8. What are the emergency plans if someone gets sick?

Like it or not, there is always going to be the possibility that an employee may get sick, or worse, die from COVID-19. You will have a narrow window to manage the situation before it becomes an unmanageable crisis. Preparing for such a situation as an employer is important during times like these. It prevents reactional decision-making that may not be in your best interest as an employer and put your employees at further risk. Things to consider are which government agencies should you call, who are the experts and people you can rely on and consult with, can the business continue to operate, how will it affect your other employees – both emotionally and physically, should you start a media campaign to mitigate the reputational damages, and how and when should you notify your customers and other employees.

If you have questions about how to navigate the changing employment laws during COVID-19, Hum Law can advise how to manage your employee contracts while protecting both employers and employees. Contact us today. To reach us by phone call (416)214-2329.