By: Landon P. Young and Ryan J. Conlin
The Ontario economy is starting down the long path towards re-opening from the massive shutdown caused by COVID-19 pandemic. This unprecedented situation will create logistical and legal challenges for Ontario employers who are hoping to restart their businesses. Employers must navigate a myriad of health and safety and employment issues, many of which will not have clear-cut legal answers.
In this Update we provide a general overview of the issues employers will need to be aware of as they re-open. As is so often the case with legal matters in the workplace, the answers to the questions are not always clear cut.
Protecting Employee Health and Safety
The most significant issues are those relating to the duty on employers to protect employees’ safety. No doubt health and safety will be at the forefront of employees’ concerns when they return to work.
The Occupational Health and Safety Act imposes an obligation on employers to take all precautions reasonable in the circumstances for the protection of workers. Courts have historically held that determining what is “reasonable” in the circumstances is assessed having regard to external safety standards, industry standards, the advice of professionals and the Health and Safety Committee.
One of the challenges for employers on the COVID-19 issue is figuring out what information to listen to. For example, there has been conflicting and evolving advice from international experts about the efficacy of masks and there also been considerable debate about the merits of taking the temperature of employees.
The Ministry of Labour, in conjunction with Ontario’s safe workplace associations, has released a series of technical guidelines dedicated to further supporting employers and employees in the province.
The guidelines cover a range of industries and sectors, including construction, transportation, utilities, healthcare, social services, transit, police and fire services, mining, forestry, retail, funeral, hospitality, maintenance, manufacturing, auto, film and tv and agriculture.
It is important to appreciate that these guidelines do not have the force of law. This means that an employer does not automatically establish due diligence through compliance with the advice set out by the Ministry of Labour. Further, it must be remembered that suggested precautions are constantly evolving to reflect the latest findings about COVID-19 and the experience of other jurisdictions that have opened up their economies faster than Ontario.
We note that one Court granted an injunction to a union to force a group of nursing homes to provide specific personal protective equipment set out in a provincial guideline, notwithstanding a worldwide shortage of such equipment.
See below for an overview of the guidelines in some of the province’s key industries.
The newly reopened construction industry can refer to the following guidelines for information on keeping employees working in construction safe:
- Guidance on Worker Procedures Handling Paperwork
- Guidance on Worker Responsibilities with COVID-19
- Guidance on Construction Facility Hygiene During COVID-19
- Guidance on Construction Supervisor Responsibilities (COVID-19 Symptoms or Exposure)
- Best Practices for the Employer – Responding to a Suspected COVID-19 Exposure
- Best Practices for the Constructor – Responding to a Suspected COVID-19 Exposure
- Guidance on Tool Sharing (Hand Tools) Constructor/Employer Procedure During COVID-19
- Guidance on PPE (Cleaning Respirators) During COVID-19
Generally, the guidance dictates that construction sites should implement certain controls, such as physical distancing, alternative forms of communication and regular cleaning and disinfecting procedures. Meetings on construction sites should be conducted over mobile phones and paperwork handling should be reduced to the greatest extent. As construction workers typically work in close proximity to each other, employers should ensure that shared tools and equipment are disinfected frequently. Further, the guidance details specific procedures for on-site handwashing stations and restroom facilities.
The guidelines also include best practices for responding to COVID-19 exposure for supervisors, constructors and employers. In particular, when a construction worker has tested positive, the supervisor is required to identify people that the worker would have been in direct contact with, identity a list of locations where the worker was recently working, initiate immediate cleaning and disinfection of these locations, and identify all tools and equipment that the worker was using. Further, employers and constructors both share the responsibility to protect workers and ensure that supervisors are well aware of workplace policies and protocols surrounding COVID-19.
An increased emphasis has also been placed on minimizing the sharing of hand tools and PPE. For example, supervisors should plan for enough tools to be on site so that workers do not have to share. In the alternative, shared tools should be identified and labelled with cleaning instructions and should be cleaned daily. Furthermore, the guidance dictates a step by step procedure for disinfecting tools and equipment.
Guidance has been released for the transportation industry on topics such as mental health, precautions for transport drivers, shippers and receivers, and the fueling of vehicles. Emphasis is placed on social distancing and using technology to minimize interactions with others as well as increasing the cleaning and disinfecting of commonly touched surfaces and tools. Extra precaution should be taken when refueling vehicles and making deliveries.
Recognizing the surge in the demand for deliveries taking place throughout the pandemic, the IHSA has also issued specific guidance on mental health awareness for the transportation sector. The guidance acknowledges the additional pressures and extended hours of work that most transport drivers are currently experiencing. In particular, the association encourages transport drivers to practice self-care and to use their social networks to maintain ties with family and friends (while following social distancing practices).
In response to the particularly unique challenges that the health and long-term care sectors are facing during the pandemic, the PSHSA has also released health and safety guidance aimed at preventing exposure to COVID-19. Again, the primary focus is on maintaining social distancing and PPE for all workers, and on establishing a system for active screening of workers, patients, residents and visitors. In addition, the guidance emphasizes an increased focus on health and safety for those working in community labs and specimen collection centres.
In accordance with the guidance, employers in the health and long-term care sectors should establish an infectious disease preparedness and plan (specific to COVID-19), addressing the levels of risk associated with the particular workplace. This would include how the workplace is to operate throughout the pandemic and recovery phase, sanitization of equipment and resources, how employees should report illness, how to ensure social distancing and how work will be scheduled. Detailed policies and procedures should be in place to ensure appropriate screening and infection prevention measures.
While hospitals and long-term care facilities have been hit the hardest, the guidance further suggests that all primary care providers should implement a system for virtual and/or telephone consultations when and where possible. Where in-person visits are necessary, care providers should operate at a lower capacity so that physical distancing can be maintained as much as possible between office staff, physicians, and patients. Phone screening can also be utilized to screen patients who are symptomatic of COVID-19 so that staff members can direct them to the appropriate facilities for testing and care.
The guidance provides an overview of how physical distancing, workplace sanitation and production schedules can be adjusted in the mining environment to prevent the spread of infectious disease. In addition to maintaining physical distancing, mining employers are encouraged to lower staffing on job sites and to adjust scheduling to allow sanitation of sites and workplaces. Further, prioritizing important tasks and staggering work schedules can help to reduce the chance of exposure.
Employers should continue to abide by provincial occupational health and safety legislation aimed at regulating safety sensitive working environments. Where engineering and process design limits an employer’s ability to meet physical distancing requirements, employees should be provided with additional personal protective equipment.
Retail and Hospitality
For retail businesses that are permitted to remain open, such as grocery stores, pharmacies and gas stations, the guidelines dictate that every employer should conduct an assessment of the functions that are carried out by their workforce to ensure that hazards presented by COVID-19 can be minimized as best as possible.
In the retail and hospitality sectors, cashiers and other frontline staff can be particularly vulnerable to exposure of the virus through contact with customers and surfaces, such as money, credit cards, counters and product handling. As a result, the guidelines encourage businesses to think about potential hazards and consider whether tasks can be minimized or eliminated, protective barriers can be installed, fresh air circulation can be improved, customer interaction can be reduced, and/or cleaning can be increased.
The WSPS has issued manufacturing guidelines for equipment operators and general labourers, quality control engineers and technicians and for supervisors, production & operations management. As with retail businesses, the guidelines recommend that every employer should conduct an individualized assessment of their workplace to address the specific hazards that may be arise as a result of their operations.
In addition to increased PPE, the guidelines encourage manufacturing businesses to consider whether they can eliminate non-essential tasks, have employees work from home, employ technology to communicate in the workplace, implement barriers between employees, reduce the number of employees in the workplace, and increase the frequency of cleaning.
As most companies are aware, an employee with a genuine, objective belief that the condition of the workplace – such as the spread of an infectious disease – is likely to endanger him or herself is entitled to refuse unsafe work. For example, genuine concerns of unsafe work may arise in circumstances where an employee’s job requires them to come into close contact with travellers. Limited exceptions to the work refusal provisions exist, however, for those working in occupations where danger is a normal part of their job or if refusing work would put someone else in danger, such as nurses and police officers.
In Ontario, to lawfully refuse work, the employee must first report the unsafe work to their supervisor (subject to emergencies which make this unsafe). A series of investigations is triggered, starting with the employer’s duty to investigate. Following the employer’s investigation, if the employee has reasonable grounds to believe that the danger still exists, he or she can continue to refuse the work. At this point, the employer will notify the Ministry of Labour, which will then conduct their own investigation of the hazards.
If the work is, in fact, deemed unsafe by the Ministry of Labour, the inspector will make the appropriate orders (the failure to comply with such can result in significant fines for employers). Of course, employers that believe the inspector’s orders are based on erroneous conclusions or are otherwise invalid, may appeal the orders before the Ontario Labour Relations Board within 30 days, and may even seek to suspend the orders pending appeal.
It appears that the Ministry of Labour has not been sustaining practically any work refusals during the pandemic thus far. We anticipate that this will change as more industries start operating and employers must be prepared to demonstrate compliance.
Employment Law Issues
Along with trying to comply with their duties regarding employee safety, employers re-starting their businesses can expect to face a wide range of employment law issues.
The Ontario Human Rights Code prohibits discrimination based on a range of “prohibited grounds” including disability, age and family status. Employers also have a duty to accommodate employees with disabilities to the point of undue hardship. Similarly, employers can also be required to accommodate an employee’s family status.
Employees with health conditions that could put them at higher risk of serious illness or death from COVID-19 may refuse to return to work. The same might be true for older employees. Employers may be required to extend unpaid leaves of absence to such employees where there is a reasonable basis for such a heightened health concern and the leave would not create an undue hardship for the employer. Employers who terminate the employment of such employees who refuse to return to work until after the pandemic ends (whenever that may be be) could be faced with human rights complaints.
Employers can ask for medical documentation to support an employee’s request for medical leave of absence. Employers are not entitled, as a general rule, to a diagnosis. However, they are generally entitled to the know if, in the opinion of the medical professional, there is a reasonable medical basis for the leave request. Any medical documentation provided also may not be categorical in stating that an employee must not return to work due to risk of serious illness or death from COVID-19. Medical professionals are often unable to give a definitive opinion. Accordingly, employers in many cases will need to exercise good judgment in deciding when an employee has reasonable grounds not to return to work.
Employers are also going to be faced with employees seeking accommodation because they are unable to return to work due to childcare responsibilities, given that schools are to remain closed until at least the end of this school year. Where the employee has younger children who need care and is unable to arrange alternate care arrangements (which is likely given that child cares are also limited in their ability to operate), the employer may be required to provide an (unpaid) leave of absence.
Some employers also have concerns that employees who live with family members who are “front line” workers at particular risk of exposure to coronavirus, such as those working in hospitals, long term care facilities or grocery stores, could bring the coronavirus in to the workplace and infect co-workers. Employers will need to be cautious about implementing any restrictions on employees coming in to work if they live with a family member who is such a front-line worker. Such restrictions could be considered discrimination on the basis of family status.
Constructive Dismissal and Termination of Employment Claims
Given that it will likely be quite some time before most employers can return to full operations, both because of social distancing requirements and a downturn in business, there may not be full-time jobs for all employees to return to. A significant reduction in hours or pay generally triggers a constructive dismissal, although much can depend on the individual circumstances. Employers in this situation may face constructive dismissal claims.
The price tags of those lawsuits could be high, particularly those involving long-service employees who do not have employment contracts with enforceable termination clauses. Those employees could be in a position to bring claims for pay in lieu of reasonable notice under the common law. As most employers are aware, the Courts can be very generous with these constructive dismissal awards.
Likewise, employers forced to keep employees on extended layoffs will also be faced with the risk of constructive dismissal claims. In the past, the Courts have generally found a layoff without pay to be a constructive dismissal for non-union employees (outside of certain manufacturing, construction, and seasonal workers). Although we may see the Courts adopt a somewhat different approach to the unique circumstances of this pandemic, the risks will be high for employers.
The Ontario Employment Standards Act, 2000 also deems employees who have been on layoff for 13 weeks without benefits, or 35 weeks with benefits, to be terminated. Given that we are now over 2 months into the “lockdown” many employees on layoff will soon be hitting the 13 week line. So far, the Ministry of Labour has provided no comfort to employers that this “deemed termination” timeline will be extended to prevent a wave of employee terminations that many employers can ill afford right now.
Employers are faced with further legal uncertainty in balancing employee privacy rights with their duty to take reasonable steps to protect employee health. Given that Ontario does not have privacy legislation that generally applies to employer-employee relationships, the scope of such privacy rights can be uncertain.
Many employers have either implemented or are considering whether to implement temperature checks in the workplace to screen out employees who may be experiencing COVID-19 symptoms. Employers are also asking employees to complete questionnaires disclosing if they are experiencing any illness or symptoms of possible illness.
In workplaces where employees work part-time or work at other employers, those employers are also implementing restrictions on where they can work so as not to risk them bringing in the virus from the other workplace.
Where an employee has tested positive for COVID-19, the issue arises as to whether the employer should disclose the identity of the employee to co-workers or at least advise employees that someone in the workplace had it, in which case co-workers may be able to surmise they have it. Of course, employees in “essential services” workplaces now benefit from the rebuttable presumption at WSIB that they caught the virus at work. Employers will have to be sure to file form-7s in such cases, or when workplace transmission is a likely or potential cause. Employers must also advise the Ministry of Labour and their JHSC.
Employers now also have good reason to be concerned about employee’s personal travel given that the risk of exposure to the coronavirus may be higher in other countries or when travelling on airplanes. Some employers are requiring employees to disclose if they engage in any personal travel and to stay away from the workplace for 14 days if they do.
In each of these cases strong arguments can be made that employees’ privacy interests should be trumped by employers’ legal duty of employers to take reasonable steps to protect employee health and safety. However, employers will need to be careful not to keep such measures in place too long. Like all pandemics, this one will eventually end. When it does end and the risk of infection from COVID-19 finally recedes, the legal balance between employee privacy rights and employer health and safety duties will shift.
Stringer LLP continues to monitor the situation closely and will provide updates on new developments as they occur.
For more information, please contact:
Landon P. Young at firstname.lastname@example.org
Ryan J. Conlin at email@example.com