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Planning the Return to Work Process

With the pandemic situation continuously evolving, it can be difficult to think about anything besides the immediate response. The early days of the pandemic required employers to act fast and make quick decisions to protect workers, safeguard client/customer relationships, and stabilize operations. But, as restrictions are gradually lifted, and we move beyond the immediate crisis phase, employers across Canada need to carefully plan how to reopen workplaces, resume operations, and get people back to work. A carefully planned and deliberate approach to reopening is required to protect workers in the short-term and remain resilient in the long-term.

This installment of The Canadian Employers’ Reopening Playbook will address key issues employers should consider when planning to reopen physical workspaces.

Legal Consideration for Reopening

1.       When will my workplace be allowed to reopen?

The exact timeframe for reopening depends on the province and the nature of the business.

Employers should look to their provincial government(s) for guidance on when they can legally reopen their workplaces. Every province has released a formal framework for the resumption of economic activity based on the impact and severity of COVID-19 in their jurisdiction, with the exception of Nova Scotia, which has announced a phased reopening without a formal plan.

For example, the government of Ontario has released a plan proposing the reopening of workplaces in three stages. While restrictions have been gradually lifted as early as May 6, the first stage of the plan commenced on May 16:

ONTARIO REOPENING TIMELINE
Early Actions Stage 1
(PRESENT STAGE)		 Stage 2
(TBD)		 Stage 3
(TBD)

May 6: The government announced it would expand “essential construction” to allow below-grade multi-unit residential construction projects to begin and existing above-grade projects to continue

May 7: Hospitals to begin planning for the gradual resumption of scheduled surgeries and procedures, with actual timelines varying between hospitals, conditional on approval by regional oversight bodies

May 8: Professional sports training facilities with established health and safety protocols

May 8: Garden centres and nurseries, under the same guidelines as grocery stores and pharmacies

May 9: Hardware stores and safety supply stores

May 11: Retail stores with street entrances, offering curbside pickup and delivery, as well as provincial parks and conservation reserves with access restricted to walking, hiking, biking, and birdwatching

Select workplaces that can meet current public health guidelines

“Essential gatherings” of a limited number of people

Some outdoor spaces

Continued protections for vulnerable populations

Specifically:

May 16: Golf courses with restricted access to clubhouses and restaurants, marinas, boat clubs, public boat launches, private parks and campgrounds, and board animal businesses (i.e., stables)

May 19: Remaining construction sites, retail services with separate street-front entrances, vehicle dealerships and retailers, certain media industries, libraries (pick-up or delivery only), religious services (drive-in only), certain recreational activities/sports for individuals or single competitors, certain professional services related to research and experimental development (physical, engineering, and life sciences), emissions inspection facilities, animal services including pet groomers and veterinary services, indoor and outdoor household services, maintenance/repair and property management services, and certain health and medical services including in-person counselling and scheduled surgeries

 More workplaces with significant mitigation plans
More public spacesSome larger public gatheringsContinued protections for vulnerable populations

All workplaces opened “responsibly”

Relaxed restrictions on public gatherings

Continued protections for vulnerable populations

Visit the following links for provincial reopening plans and guidance on when you can expect to reopen your business:

2.      Are there any restrictions or requirements I need to consider as part of my reopening plan?

Once employers have determined if, and when, they can reopen, employers need to assess whether their workplaces can be reopened in compliance with public health and occupational health and safety requirements. In lifting restrictions, many provinces have released sector-specific health and safety guidelines, offering recommendations on how to keep workers and customers/clients safe.  These guidelines address best practice health and safety protocols, including:

  • Physical distancing;
  • Limits on gatherings;
  • Cleaning and sanitization;
  • Use of personal protective equipment (“PPE”); and
  • Infection, prevention, and exposure control.

For all intents and purposes, these guidelines are requirements that employers must comply with. Businesses that fail to adequately address these public health and occupational health and safety guidelines may face significant liability under local law, including prosecution, and/or unexpected workplace inspections and orders mandating compliance.

Provincial Workplace Guidelines published as of May 22, 2020:

Alberta
British Columbia
Manitoba
New Brunswick
Newfoundland & Labrador
Ontario
Prince Edward Island
Quebec
Saskatchewan

Healthy and Safety Considerations for Reopening

3.       In addition to guidelines, are there any other health and safety obligations I need to consider as part of my reopening plan?

In deciding whether to reopen workplaces, employers must be mindful of their obligations under provincial occupational health and safety legislation. Across Canada, employers have a duty to:

  • Take all reasonable precautions to protect the health and safety of workers;
  • Ensure that equipment, materials and protective equipment are available and maintained in good condition; and
  • Provide information, instruction, and supervision to protect the health and safety of workers.

These obligation, among others, requires employers to assess the risk of transmission of COVID-19 in the workplace.

4.       How do I assess the risk of transmission of COVID-19 in my workplace, and what measures should I implement to eliminate or minimize hazards related to COVID-19, if any?

Generally, a COVID-19 risk assessment requires employers to:

  • Recognize and identify COVID-19 related hazards in the workplace;
  • Determine which workers may be exposed or potentially exposed to the hazard; and
  • Assess the hazard to determine how it can be controlled.

The purpose of the assessment is to identify and eliminate existing and/or potential hazards relating to COVID-19. Any hazards that cannot be eliminated completely, must be controlled. Control can be applied at the source of the hazard, along the path between the source and the worker, or at the worker. Methods of control include:

a.             Engineering controls: reconfigure/redesign the workplace to control the hazard at the source (e.g., use of barriers or partitions, removing seats from lunch rooms and common areas, one-way foot traffic etc.)

b.             Administrative controls: change the way people work (e.g., staggered schedules, restricting meetings, health questionnaires, temperature scans, encouraging sick workers to stay at home, policies for safe work practices in light COVID-19, travel restrictions, limiting hours of operations, providing adequate supplies and reminders for hygiene, increased frequency of cleaning, etc.)

c.             Personal protective equipment: minimize exposure to workers by using personal protective equipment (e.g., gloves, eye protection, gown, face protections, masks etc.)

The necessary precautions to eliminate or mitigate the risk of transmission will depend on each worksite. To evaluate the risk of transmission of COVID-19 in the workplace, employers should perform a physical walkthrough of their workplace. In doing so, employers should consider the risk of exposure in individual and shared spaces, including elevators, offices, cubicle areas, production lines, bathrooms, stairwells, hallways, breakrooms, etc. Some common reasonable precautions to mitigate the risk of transmission include:

  • Allowing employees to work from home, where possible;
  • Mandating physical distancing in the workplace through the use of floor markers, and posters reminding workers to avoid gatherings and close contact greetings such as handshakes;
  • Providing information on proper hand hygiene, including handwashing techniques;
  • Limiting the sharing of workplace equipment, where possible;
  • Providing and mandating the use of personal protective equipment in the workplace;
  • Staggering start times, shifts, breaks and lunch times;
  • Screen workers regularly for COVID-19 symptoms; and
  • Restricting the number of people in areas where people gather, such as elevators, lunch rooms, and meeting rooms.

Employers should develop, post, and communicate written policies and procedures highlighting the measures adopted to control COVID-19 in the workplace. Any health and safety policies adopted in response to COVID-19 should indicate that it is required for occupational health and safety and public health initiatives, and violations of the policies may result in disciplinary action. In addition to adopting the policies and procedures, employers should ensure that managers and supervisors are adequately trained and understand the importance of strictly enforcing the adopted policies and procedures. By doing so, the employer will mitigate the risk of transmission while promoting a culture of safety in the workplace.

Employers should remember that any hazard assessment and/or response should be done in consultation with joint health and safety committees, health and safety representatives, and/or union representatives (if any). Doing so will ensure compliance and minimize exposure to complaints under occupational health and safety legislation, human rights legislation, at common law, or under collective agreements. If the employer is a party to a collective agreement, the employer should review the operative agreement prior to implementing changes that alter and/or impact terms of the agreement. If a policy and/or procedure impacts a collective agreement, employers should consider entering into Letter(s) of Understanding with the union to address the change in practice to mitigate the risk of grievance arbitrations.

The Government of Canada has released risk-informed decision-making guidelines to help employers determine the specific health and safety actions required during the COVID-19 pandemic. Employers can use this guideline to identify and mitigate against COVID-19 related risks in their workplace.

Compensation Considerations for Reopening

5.      What compensation related arrangements should be considered, and what impact will these arrangements have on eligibility for government programs?

The return to work process should happen gradually to allow time to test preventative measures and ensure compliance with public health and occupational health and safety requirements. Employers should review government-funded wage subsidies or other assistance programs to determine how to best organize the workforce, and structure the return to work. Available programs include:

Canadian Emergency Response Benefit (“CERB”)
  • What is it? Income support program for workers who are not able to work for 14 or more consecutive days due to COVID-19.
  • How much does offer? $500 a week up to 16 weeks between March 15 and October 3, 2020.
  • How does this impact my plan for return to work? Employer should think about how transitioning back to work will impact each employee’s eligibility for the CERB or repayment obligations for returning to work sooner than later.
Canadian Emergency Wage Subsidy (“CEWS”)
  • What is it? A subsidy to encourage employers to continue to employ and/or remunerate their employees, or return to doing so.
  • How much is it?  For most employees, the subsidy will cover 75% of eligible remunerations (“remunerations”), or $847 per week, whichever is less, between March 15, 2020 and August 29, 2020.  However, the formula is complex.  See here for further details. Employers are generally eligible for a subsidy with respect to active employees and employees who are on a paid leave.
  • Who is eligible for it? Most employers, other than “public institutions”, who have experienced a decline in gross revenues of at least 15% between March 15, 2020 and April 11, 2020, and/or 30% in subsequent “qualifying periods”.  The calculation is complex.  See here for further details. The subsidy generally subsidizes the remunerations of employees who have not been without remuneration for 14 or more consecutive days during the eligibility period.
  • How does this impact my plan for return to work? Eligible employers should consider whether this subsidy will help stabilize their operations, help prevent further losses, and better position the company to resume normal operations following the crisis.

Employers should note that CEWS payments will be reduced by other government assistance benefits, including the temporary wage subsidy (see below), and payments provided as part of the work-sharing program.
Temporary Wage Subsidy (“TWS”)
  • What is it? Temporary wage subsidy is 10% subsidy available to employers in the form of a tax deduction. Employers calculate the subsidy and reduce income taxes remittances by the subsidy amount.
  • How much does it cover? This subsidy will cover 10% of remuneration paid to employees, up to maximum of $1375 per employee, and $25,000 for the employer between March 18, 2020 and June 19, 2020.
  • Who is eligible for it? Eligible employers include individuals (sole-proprietors), non-profit organizations, certain partnerships, registered charities, and Canadian controlled private corporations eligible for a small business tax deduction.
  • How does this impact my plan for return to work? Eligible employers should consider whether this subsidy will help stabilize their operations, help prevent further losses, and better position the company to resume normal operations following the crisis.

It is possible to simultaneously participate in the TWS program and the CEWS program, but doing so will likely reduce the amount available under the CEWS in the same period.
Wage Top-ups for Essential Workers (Premium Pay)
  • What is it? Government funded hourly wage top-up for front-line and essential workers required to work during the pandemic.
  • How much is it? This depends on the jurisdiction. Provincial governments have discretion over the amount and disbursement of the top-up. Ontario and Quebec have announced $4.00 wage increases while Saskatchewan has announced a $400 monthly wage supplement.
  • Who is eligible for it? This depends on the jurisdiction. Provincial governments have discretion to determine who qualifies as a front-line or essential worker.
  • How does this impact my plan for return to work? Employers reopening at this stage are unlikely to qualify for the top-up. However, employers should consider whether wage cuts or increased wages are necessary at this time.

Employers who reduce wages should obtain meaningful consent from affected employees. Employers who temporarily increase wages should clearly confirm, in writing, the gratuitous-basis for the payments, the duration of the payments, and specify any conditions for the payment.

Stay tuned for the next installment of The Canadian Employers’ Reopening Playbook, where we will discuss how to implement your return to work plan to bring employees back into physical workplaces.