“Back to work”: employer obligations for a new normal

Torys Quarterly: Recalibrating for recovery

Many jurisdictions are beginning to consider an easing of COVID-19 restrictions, which will likely see many businesses resuming operations and employees returning to work at their facilities.

The resumption of operations and return to work carry a number of unique challenges for employers, particularly given that the risk of contracting COVID-19 has not fundamentally changed at this time.

Planning the return to work

Thoughtful planning of employees’ return to work will be critical for employers to ensure a successful return to normal operations. Employers must be mindful of their ongoing occupational health and safety, human rights and other employment obligations as they develop their plans. Guidelines issued by public health authorities and provincial governments will also influence an employer’s plans. For example, guidelines recently issued by Ontario’s Ministry of Labour and certain health and safety associations make it clear that social distancing measures will continue to be required for business that intend to re-open.

Employers must also consider the characteristics of their particular work environment in assessing policies and practices to be implemented in the return of their workforce. Below, we outline key issues employers may wish to consider. However, there is no “one-size-fits-all” approach. Employers are encouraged seek legal advice with respect to the steps that may be taken to facilitate the return of their workforce.

Transportation to the facility

Employers should consider how their employees travel to the workplace and what supports may be offered to enable employees to travel there safely, if requested. For example, employees who take public transit to work may be reluctant to do so, particularly during busier travel times. Strategies to address these issues may include staggering working hours to avoid travel during rush hour or providing employees with reimbursement for parking fees and gas.

Accessing the facility space

Employers should also look at how their employees enter and exit the facility premises. For example, many office spaces are only accessible through an elevator shared by many other businesses. Employers should ensure they consult with their landlords to confirm any access restrictions that may be in place (e.g., restrictions on the number of people permitted in an elevator at any time) and consider how best to incorporate those restrictions —and any others the employer wishes to impose—into their plans for the return of the workforce. Likewise, employers should consider whether it is necessary to ask their landlords to impose new restrictions on access to the building and/or the facility.

Facility setup

How a particular facility is physically set up will also influence how an employer facilitates the return of its workforce. Employers with open-concept floor plans or where employees sit less than two meters apart should consider what steps may be taken to ensure appropriate social distancing in the facility. Similarly, thought should be given to in-person meeting policies, having regard for available meeting spaces in the facility and how many employees may be able to safely fit in those spaces. Employers who operate on a “hoteling” basis (i.e., where employees work at different workstations daily) should consider what steps may be taken to avoid the spread of germs. Finally, employers should consider the traffic flow in their facilities, and whether it is necessary to restrict or control the movement of employees throughout its premises e.g., by requiring employees to travel only in a single direction, creating dedicated entry and exit points, etc.).

Third party access restrictions

Employers should consider the extent to which third parties (i.e., vendors, clients, customers, etc.) will be permitted to access their facilities. If third parties will be permitted to access the facility, employers should consider what access restrictions may be imposed on such parties.

High touch surfaces and common areas

Employers should identify the high touch surfaces and common areas in their workplace. Plans should be developed to ensure that all high touch surfaces are appropriately cleaned in accordance with prevailing guidelines. Employers should also consider whether steps ought to be taken to restrict the use of common areas by employees upon their return to work.

Personal protective equipment

Employers should consider what personal protective equipment (gloves, masks, etc.), if any, will be provided to employees, considering the nature of the work being performed and the setup of the workplace. Similarly, soap and handwashing instructions should be provided to all employees. If possible, it can also be helpful to provide hand sanitizer and/or sanitizing wipes to employees.

Health and safety policies and procedures

Employers should ensure that their health and safety policies and procedures are up to date and appropriately address the COVID-19 related risks in the workplace. Employers should, among other things, ensure their policies provide clear guidance to employees regarding when employees are prohibited from coming into the workplace (e.g., if they or someone they live with has been diagnosed with COVID-19) and how the employer will respond to a positive COVID-19 diagnosis in the workplace.

Stay flexible

Although planning is critical to a successful return to work, once normal operations resume employers should continuously reassess their policies and practices, having regard to their occupational health and safety, human rights and employment obligations.

Recalling employees to work

Once employers have developed a plan for the return of their workforce, they may start recalling employees to work. As employers recall their employees, they are likely to face two similar but distinct issues, namely a) a refusal by some employees to return to work due to COVID-19 related concerns, and b) employees who wish to work from home.

Work refusals

When an employee refuses to return to work, the employer should at first instance seek further information about the reason for the refusal.

Employees generally have a right under occupational health and safety legislation to refuse to work where they have a reasonable basis to believe that the performance of their job duties presents a danger to their health or safety. Whether or not an employee’s belief regarding the safety of the workplace is “reasonable” will depend on, among other things, the nature of the workplace, the employee’s individual circumstances and the publicly-available information with respect to COVID-19 at the time of recall.

Human rights laws may also provide employees with a basis to refuse to return to work, depending on the reason for the refusal (i.e., whether it is based on a prohibited ground of discrimination) and whether there are other ways for the employer to accommodate the employee. For example, family status and disability accommodation requests have been relatively common in the COVID-19 crisis.

Finally, employment legislation across the country permits employees to take certain job-protected leaves of absence, including leaves related to COVID-19. Employers must consider whether the employee’s refusal to return to work on the basis of a leave is protected by any provincial employment statutes.

Ultimately, employee refusals will need to be evaluated on a case-by-case basis. Employers are encouraged to be flexible and thoughtful in dealing with such situations, taking into account the state of the pandemic at that time. However, employees who do not have a legitimate reason for refusing to return to work may be subject to disciplinary action.

Requests to work from home

Subject to human rights and occupational health and safety considerations, and any applicable employer policies, employees do not generally have a right to work from home. Requests to work from home will also need to be evaluated on a case-by-case basis. Employees who unreasonably refuse to return to work may be subject to discipline.

However, while employee requests to work from home may pose a challenge for employers, they may also present some unique opportunities. The historical context of work-from-home arrangements is that they were often the exception, rather than the rule. In recent years, there has been a general increase in the willingness on the part of employers to permit employees to work from home, subject to certain requirements and limitations. Now that much of the workforce has worked remotely for an extended period due to COVID-19, there may be a case for permitting such arrangements to continue in some form, particularly where the employer has been able to successfully run its business during that period. Continuing such arrangements may require developing work-from-home policies and other changes, but it could result in potential savings to the employer (e.g., reduced facility leasing costs, as less facility space may be required as more employees work from home).

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