By: Nikita Gush, Associate Lawyer at Doak Shirreff Lawyers LLP
Employers have a duty to protect the workplace health, safety, privacy, and human rights of their employees. As our province begins to “restart” it is important for employers to consider the responsibilities they have while they re-open and restart their business operations.
As you may be aware, on May 6, 2020 the BC Government released its “Restart Plan” which includes a four-phase plan to “get people back to work.” The Restart Plan explains that as of May 19, 2020, our province has entered what is now known as “Phase 2”, which involves the gradual re-opening of certain businesses, including:
- health services;
- retail stores;
- personal service establishments;
- museums, art galleries, and libraries;
- office-based worksites;
- recreation and sports;
- parks and outdoor spaces; and,
- childcare services.
The Restart Plan notes that as we enter into phase 2 and move toward the final phase 4, that the province is aiming to have a careful restart. One of the ways that the government is ensuring that our province’s restart moves along at an incremental pace, is requiring employers to have a COVID-19 Safety Plan, as directed by WorkSafeBC. While WorkSafeBC will not be reviewing or approving safety plans, each employer must have a safety plan posted at their worksite, which is in accordance with the order of the Provincial Health Officer, issued on May 14, 2020.
WorkSafeBC has provided a COVID-19 Safety Plan template which offers employers an outline of policies, guidelines, and procedures that they should put in place as they restart business.
According to the WorkSafeBC COVID-19 Safety Plan template, an employer’s COVID-19 safety plan needs to include the following steps:
- assessing the risks at your workplace;
- implementing protocols to reduce risks;
- developing the necessary policies to manage workplace risks;
- developing communication plans and training for employees; and,
- assessing and addressing risks after resuming operations.
Step 1: Assessing Risks at the Workplace
The first step asks employers to consider the ways in which COVID-19 is transmitted and the ways in which person-to-person transmission could occur in the regular operation of your particular workplace.
The World Health Organization (WHO) has identified that the virus’s clearest mode of transportation is through transmission of droplet particles between people. The WHO explains that, “droplet transmission occurs when a person is in close contact (within 1 m) with someone who has respiratory symptoms (e.g. coughing or sneezing) and is therefore having his/her mucosae (mouth and nose) or conjunctiva (eyes) exposed to potentially infection respiratory droplets.” It is also notable that transmission can occur through direct contact with infected people, and indirect contact with surfaces that an infected person has been in contact with.
Keeping in mind that COVID-19 spreads via droplet transmission, you can now consider how this might affect the re-opening of your workplace. For example, WorkSafeBC advises in its COVID-19 Safety Plan template that, “the closer together workers are and the longer they are close to each other, the greater the risk.” Therefore, as you complete this first step in developing your safety plan, you need to identify:
- where people gather, such as break rooms and production lines;
- job tasks and processes in which workers and/or members of the public are close together; and,
- tools, machinery, equipment, and high-touch surfaces in your workplace.
Step 2: Implementing Protocols to Reduce Risks
WorkSafeBC has industry-specific protocols that offer guidance for the risks relevant to your type of workplace. New industry-specific protocols are continuously being created by WorkSafeBC. Other resources include orders, guidelines, and notices issued by the provincial health officer that are relevant to your industry, as well as the health and safety notices that may be provided by your professional or industry associations.
Ultimately, WorkSafeBC has set out four levels of protection that an employer must implement protocols for.
- The first level of protection is eliminating risks. This includes protocols to limit the number of people in your workplace at one time and re-arrange workspaces and work tasks in order to ensure that workers are at least 2 m apart from co-workers and customers.
- If it isn’t possible to maintain physical distancing in certain circumstances, then the second level of protection is to install barriers such as plexiglass to separate people.
- The third level of protection includes establishing rules and guidelines for your particular workplace, such as occupancy limits and one-way doors, to help with physical distancing measures.
- And, finally, the fourth level of protection involves personal protective equipment, such as masks. However, it is important to note that masks must be worn properly in order to be effective, and non-medical masks are not tested to recognized standards, and therefore may not be as effective in blocking virus droplets.
In addition to person-to-person transmission, the virus droplets can be indirectly transmitted through surfaces. As a result, it is important that your COVID-19 safety plan consider cleaning protocols such as disinfecting surfaces, handwashing, and the removal of unnecessary equipment and tools to simplify the cleaning process.
Step 3: Developing Policies to Manage Risks
The requirement for employers to develop policies as a component of their COVID-19 safety plan includes policies to ensure that your employees and others who are or have been showing symptoms of COVID-19 in the last 10 days, are prohibited from your workplace. These symptoms include fever, chills, new or worsening cough, shortness of breath, sore throat, and new muscle aches or headaches. As well, anyone directed by Public Health to self-isolate should not be at your workplace, and anyone who has arrived from outside of Canada or has had contact with a confirmed COVID-19 case must self-isolate for 14-days before coming to your workplace. Your policy development may also include developing working from home policies so that there are less employees at your workplace.
Step 4: Communicating and Training Plans for Employees
As an employer, you must ensure that every person entering your workplace, including your employees, are aware of your COVID-19 Safety Plan. The communication of this information can take the form of employee training, posters identifying occupancy limits and hygiene practices, and training supervisors to monitor workers to ensure that the policies and procedures are being followed.
Step 5: Monitoring and Updating your Plan as Necessary
The circumstances surrounding COVID-19 are ever-changing and evolving. Therefore, it is important to consider how things changes affect your day-to-day business operations. If your polices or procedures are not working, consider updating or changing them. This process can include consulting with your employees and asking them how your COVID-19 safety plan policies could be improved in practice.
Step 6: Assessing and Addressing Risks for Resuming Operation
Finally, if you are in position in which you need to re-open your business after closure, your COVID-19 safety plan should confirm that you have addressed how to train new employees and existing employees, and whether or not your employees are going to be taking on new roles or responsibilities. As well, your plan should consider how these changes are going to affect your business, such as the need to purchase new equipment or products, and how your vehicles, equipment, and machinery is going to be re-started with your COVID-19 safety plan in mind.
As an employer, if you are making unilateral changes to the terms of employment of your employees, it is important to consult pre-existing employment contracts and workplace policies, as well as the applicable standards in the Employment Standards Act to consider how you can protect your business from liability. In addition, it may be the case that re-opening your workplace involves re-calling employees that have been temporarily laid off. If you need assistance in any of these matters and wish to further discuss how your legal obligations continue to evolve during this pandemic, the Doak Shirreff Lawyers LLP employment law group is here to assist you in this transition and ensure that you have the most up-to-date information.