August 10, 2020

About the Author

  • Erin E. Zorde

    Erin practices in the areas of labour, employment and human rights law and civil litigation.

    eez@tdslaw.com
    (204) 934-2506

As provincial governments in Canada carefully lift restrictions, employers must be cognizant of new workplace considerations and how their employees will return to work safely and smoothly. This article serves as a guide for employers as they develop their COVID-19 return-to-work plan.

Developing a return-to-work plan

Prior to creating a COVID-19 return-to-work plan, employers should be mindful of their existing obligations. Their plan should take into account any current employment policies or agreements, employee handbooks, and collective agreements. Employers should additionally monitor any workers’ compensation developments that may affect their return-to-work plan.

When developing and implementing a return-to-work plan, employers should consider, but not be limited to, the following steps:

  1. Researching provincial restrictions and determining whether their business is legally allowed to reopen.
  2. Assessing the workplace and determining whether their business is physically able to reopen safely, which includes:
      1. Discussing reopening with the workplace safety and health committee or representative (if one exists), employees, and if applicable, their union;
      2. Identifying areas and activities that may increase an employee or visitor’s risk of contracting COVID-19; and
      3. Implementing measures to prevent and limit the spread of COVID-19.
  3. Developing a COVID-19 contingency plan if an employee begins feeling ill or showing symptoms in the workplace, which includes:
      1. Identifying an area where the employee is able to isolate while they are waiting for transportation; and
      2. Preparing a communication plan for notifying other employees of the potential exposure to COVID-19.

Employers may also consider putting a team of individuals in charge of the return-to-work plan to allow for a wider range of perspectives and a more accessible return-to-work plan.

Reducing contact in the workplace

At the start of the COVID-19 pandemic, many businesses rushed to have their employees work from home and other businesses were shut down completely. As businesses reopen, employers should consider reducing physical contact, where possible, by enabling employees to work from home or by using e-mail, teleconferencing, and videoconferencing in lieu of in-person meetings. If physical workplaces need to be reopened, it is recommended that employers modify practices to reduce contact, such as implementing a contactless business model, postponing non-essential meetings or travel, and staggering work hours or workdays.

There are several aspects an employer should consider if they choose to implement staggered work hours. Employers should factor in the impact of daycare, school, and public transportation and how those disruptions may impact the availability of employees for the staggered hours, as there may be employment standards or human rights implications in some scenarios. If unionized, employers should also ensure that the new work schedule is in compliance with any collective agreements.

In addition to adjusting work locations and schedules, employers should consider adapting their physical workplaces to reduce contact. Employees should be spaced at least 6 feet or 2 metres apart. Where a 6 feet or 2 metre distance cannot be consistently maintained, other forms of physical barriers may be used, such as taller cubicles or plexiglass.

Proper use of signage, sanitation, and personal protective equipment

Employees and visitors of physical workplaces should be made aware and reminded of the business’s COVID-19 physical distancing protocols. The main areas employers should consider are:

  • Entrances and Exits: Employers should consider signage that discourages people who are feeling ill from entering the workplace. Alcohol-based hand sanitizers should be available for employee and visitor use. Employers should consider if temperature tests will be used and the associated protocols and confidentiality with using such equipment.
  • Elevators: Employers should consider the number of people allowed in an elevator at one time. Employers should also consider any bottlenecks that may arise from restricting elevator access and develop plans to mitigate large groups from forming. Signage should be posted to help employees and visitors follow these protocols.
  • Washrooms: Employers should post information reminding employees to wash their hands often for at least 20 seconds, cover their mouth and nose when coughing or sneezing, avoid touching their faces, and avoid sharing personal items.
  • Floors: Employers should consider posting floor markings to help form lines with adequate spacing. Employers should also consider implementing directional walkways and posting floor markings to help direct the flow of traffic.

Employers in Manitoba can access printable resources online on the Government of Manitoba’s website or the Shared Health website.

In terms of sanitation, employers should ensure there is a protocol in place for the overall sanitation of the workplace, in particular, the cleaning and sanitizing of washrooms. Employers should also remove any unnecessary high-touch surfaces, such as magazines and toys in the waiting room.

Lastly, the use of personal protective equipment (PPE) may be used on the advice of an organization’s occupational health and safety officer. If required, employers will need to provide PPE to employees and teach employees how to correctly put on and take off PPE.

The Government of Canada recommends the use of non-medical masks or cloth face coverings in certain situations when it is not possible to consistently maintain a 6 feet or 2 metre distance from others, such as in crowded settings.[1] If an employer wants to require or encourage the use of masks, they should supply those masks to employees and/or visitors.

Accommodation of high-risk employees, employees with dependants or employees who refuse to work

COVID-19 has given rise to numerous challenges for both employers and employees. Many employees have underlying health conditions, have childcare issues, are caring for a sick relative, or have concerns about returning to work. Employers should consider and develop policies that accommodate these groups:

  • High-Risk Employees: Employers may want to consider implementing a policy where employees can communicate that they are at a higher risk in a confidential manner. Employers should consider allowing the employee to work from home or reassigning the employee to job tasks that lower their risk of exposure.
  • Employees with Dependants: Employers may want to consider allowing the employee to work from home. Employers may also want to review existing policies to determine whether the employee is eligible for paid leave.
  • Employees Who Refuse to Work: In Manitoba, employers should consider whether the employee’s refusal comes from an employer’s violation of The Human Rights Code (Manitoba). An employee who refuses to work will generally need to report the hazard to the employer and the employer should then take steps to investigate the concern and should involve the workplace safety and health committee or representative (if one exists).

Responding to a positive diagnosis or potential exposure to COVID-19

Employers should communicate with their employees that it is their responsibility to self-report to human resources or management when they receive a positive COVID-19 diagnosis for themselves or their family members. Employees should also report if they or their family members exhibit characteristic symptoms of COVID-19 or if they are subject to travel-related quarantine restrictions. If an employee begins to feel ill at the workplace, the employer should follow the established COVID-19 contingency plan in their return-to-work plan.

If an employee is confirmed to have COVID-19, the employer must maintain confidentiality and privacy. In Manitoba, public health officials will conduct a public health investigation. The employee will need to identify all individuals they worked closely with during the time that they were infectious. These employees will need to be informed of any possible exposure, but the identity of the infected employee must be kept confidential. If any additional measures need to be taken, public health officials will provide advice to the workplace.[2]

Conclusion

As a result of COVID-19 and the development of a return-to-work plan, employers may additionally need to adjust their policies and contracts. Employers should update their employee handbooks to reflect the “new normal” and prepare for future pandemics.

Employers should consider adjusting:

  • Telework policies to address mandatory and optional work from home arrangements.
  • Technology policies to address security, privacy and acceptable use of company equipment as more employees work from home.
  • Time off policies to clarify paid and unpaid leaves of absences.
  • Travel policies to provide for travel restrictions and quarantine periods.
  • Anti-discrimination and anti-harassment policies to remind employees that discrimination or harassment on the basis of any enumerated ground in The Human Rights Code (Manitoba) is unlawful and to not make determinations of risk for COVID-19 based on race or country of origin.

As you develop your return-to-work plan and adjust your employee policies and handbooks, Thompson Dorfman Sweatman LLP is here to support you. Consider contacting a member of our Labour and Employment team to help your business navigate the “new normal”.

[1] https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/guidance-documents/risk-informed-decision-making-workplaces-businesses-covid-19-pandemic.html

[2] https://manitoba.ca/asset_library/en/coronavirus/restoring-workplace-guidance.pdf

Co-author: Celyna Yu,
Law Student at TDS


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This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

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