In this new world of OHS, focused on preventing introduction of the virus into, or spreading at workplaces of various sizes, designs and risks, entirely new types of protective equipment, cleaning and hygiene measures, physical distancing measures and screening previously unheard of at workplaces, have become accepted, albeit perhaps temporary, OHS measures.
Much has been written on this topic, and the specifics of ‘public health’ guidance. Government Ministries of Health, Labour/OHS, consultants, the Canadian Centre for Occupational Health and Safety (CCOHS) and many other bodies and sector-specific safety associations have advised in detail how to adapt public health officials’ guidance to workplaces, including office settings, construction projects, daycares, manufacturing, health care, transportation, remote work camps, and a myriad of other types of businesses.
Important as these measures are, this article does not repeat that ‘public health’ advice. Instead, our focus is on several key OHS related lessons learned and ‘novel’ OHS legal issues arising from the pandemic, which continue to create issues for employers, OHS, HR and management, as workplaces continue to reopen and work to stay open with ‘public health’ measures in place.
General duty OHS measures must consider ‘all of the circumstances’
Canadian OHS laws, whether provincial or federal, were not changed to address the pandemic. The obligation on employers to take measures to protect workers against the virus have arisen from an employer’s obligation to take reasonable protective measures against risks to health or safety. With some variance in wording, this general duty exists in all Canadian OHS legislation. These provisions have provided a gateway for OHS regulators to require the implementation of ‘public health’ measures in the workplace. These measures are the topic of much discussion and current detailed guidance and are now subject to government inspections and/or investigations and potential OHS orders or enforcement.
One example is the expectation or recommendation that employers create pandemic plans.[ This is mandatory in British Columbia as the Provincial Health Officer has required that all businesses develop a COVID-19 safety plan. The enforcement of this requirement has been delegated to WorkSafeBC. In Alberta, while a requirement to post a comprehensive COVID-19 plan within seven days of r-opening was rescinded, all businesses must still implement practices to minimise risk of transmission in accordance with applicable guidance and ensure a procedure for rapid response in the event symptoms of illness develop at the worksite. In Ontario and other jurisdictions, governments have made it clear that reopening any business is contingent on expectations the business will have in place measures for safely re-opening, based upon public health guidance. These plans require taking into account published guidance on reasonable measures to protect workers and they are generally founded on language in the applicable OHS statute requiring consideration of what is ‘reasonable’ or ‘practicable’ in all of the circumstances.
As a result, we are seeing increased focus in pandemic plans and practices on ‘novel’ OHS measures founded on OHS general duties to workers such as:
What about vulnerable individuals?
Questions have arisen repeatedly about measures that ought to be put in place for individuals who either refuse to return to work as workplaces reopen, or who seek unique measures or accommodation due to their particular circumstances. For example, they or a family member are at increased risk for a severe outcome if infected with COVID-19.
Our view as OHS lawyers is that these circumstances also require consideration under the general duty clauses of OHS statutes. Can additional measures be reasonably put in place at the employer’s worksite? Can the worker work from home or be isolated in some other manner remotely? Would additional protective equipment or controls for this particular worker be reasonable or practicable? Should the worker seek the assistance and input of their physician in advising on such measures? Are there human rights accommodation issues? All of these are important considerations that should be carefully analysed as circumstances require.
Creativity may be required or, perhaps, regard given to guidelines from other sectors that may suggest a practicable type of protective measure or equipment. General duty requirements are not limitless, however, and do not require every conceivable measure to be taken or measures that are not reasonable after considering all of the circumstances. For example, general duty OHS clauses do not require the creation of an entirely new position for a worker or permitting the person to work at home, where no meaningful work exists for them to perform there (human rights laws, discussed briefly below, also do not require this).
Reasonableness of public health or industry guidance
A troubling situation experienced by some Canadian employers is the government or sector guidelines issued which, at least initially, appeared to parrot strict social distancing expectations of two metres, without permitting or guiding on other measures that may be reasonable in the circumstances. Inevitable questions arose: can workers travelling in vehicles or performing work tasks together, or accessing elevators (which may require workers to be closer than two metres for safety and/or efficiency) be performed with enhanced PPE or other measures including nonmedical grade face coverings?
In the authors’ view, general duty clauses, properly applied, must account for all of the circumstances. This should include the use of face coverings or masks for tasks where workers cannot properly, or safely, work at a distance recommended by public health.
Where OHS enforcers blindly recommend or order adherence to physical distancing recommendations, the employer may take the position that other measures may reasonably protect its workforce. In these circumstances, there is room for debate, discussion and perhaps challenge.
Challenging OHS enforcers’ interpretations of reasonable precautions based on public health
Keeping in mind that, for most workers and workplaces, no express OHS provisions for pandemics or infection prevention exist in OHS regulations, if a particular expectation or order from an OHS enforcer becomes the deciding factor between closing the workplace, its reopening, or continued operation with appropriate safety measures, discussions with the OHS enforcer can be beneficial. Employers may need to challenge a particular OHS officer’s interpretation of the public health measures that are ‘reasonable’ or ‘practicable’ in all of the circumstances of the particular workplace.
The appropriate interpretation may be dependent upon an explanation and understanding of the application of general public health measures to the circumstances. One such issue that seems to be on the horizon is whether there is any acceptable duration for workers to be working within physical distancing recommendations without the use of a mask or face covering (We note that local bylaws may require the use of face masks or coverings in public spaces and our comments are with respect to spaces that are not the subject of such bylaws).
The current guidance about transmission risk indicates that transient contact with a person (such as walking past them) creates little to no risk of transmission. It also indicates that there is a high risk of transmission with prolonged unprotected contact with a symptomatic person or asymptomatic person (who develops symptoms within 48 hours). Prolonged contact is defined as at least 15 minutes. The authors are not suggesting that workers not be required to wear masks or face coverings when in close contact with one another for less than 15 minutes. It does, however, provide an example of where guidance on what may be reasonable in the circumstances will be dependent on public health measures applicable to specific circumstances.
Discussions regarding creative additional protective equipment or measures, or creative means of ensuring proper hygiene at a worksite such as a remote workplace or construction project, can and have been held with regulatory enforcers. Consider whether stepping up protective equipment beyond what is ordinary at a construction project might satisfy the enforcer (cloth masks, barricades such as those used for retail, even respiratory protection recognized as essential for healthcare workers). Consider an appeal, or threatened appeal, of any compliance or stop work order. In our experience a threatened appeal, creativity, and discussions with the enforcer or their legal advisors can often yield beneficial results permitting a workplace, worksite or construction project to continue.
Preventing escalation of pandemic-related Issues, problems beyond the OHS sphere
While the specific public health and safety risks to be managed have varied across workplaces, a universal experience of OHS professionals in 2020 has been the evolution of occupational health and safety matters into multi-dimensional workplace issues. Understanding and proactively spending time assessing the multifaceted nature of pandemic-related safety issues in the workplace, and working with other professionals in related areas (e.g. human resources, labour relations, legal) to keep on top of hazards as they develop, to prevent their escalation, has never been more important.
In some instances, ‘safety’ issues have escalated, attracted the attention of unions, advocacy groups, more than one workplace regulator, and the media, and resulted in complaints or threatened litigation in multiple forums such as human rights, privacy, or labour relations tribunals.
Consider the following safety issues raised by the pandemic that could quickly become a minefield of overlapping and, often conflicting, interests.
Specific requirements of public health orders and directives that affect business operations Across the country, the pre-condition for operating during any staged reopening of the economy is continued compliance with requirements of public health authorities, including physical distancing and sanitation measures. Falling short of any specific requirement to your industry, if not corrected, may lead to legal action. OHS advisors must become experts in, or ensure specific accurate advice on, the multitude of public health and emergency legislation and orders being issued relevant to their jurisdiction.
Privacy implications related to the collection, use and disclosure of personal information When a worker voluntary discloses a positive test result or COVID-19 symptoms, and with the performance of temperature testing or other screening measures, privacy issues as well as safety come to the forefront. There is risk that certain measures taken for ‘safety’ may unreasonably intrude on worker rights to privacy. Obtaining worker consent to disclosure of information in limited circumstances and manner can assist. OHS advisors require detailed advice and plans for appropriate limited disclosure of information to protect privacy and plans should workers refuse to comply with safety measures due to privacy concerns.
Overlap with requirements under human rights legislation
Should a work refusal occur, in which a worker claims their particular medical circumstances prevent a safe return to the workplace, this may require disclosure of health information and engaging more than safety concerns or an inquiry may be triggered by an ongoing absence from the workplace. If a particular work refusal is determined not to be related to specific measures for safety of the workplace, but rather the particular medical circumstances or family status issues, the employer’s obligations do not stop with confirming that information. HR or legal advisors need to be involved as the employer may have an obligation to accommodate the worker under federal or provincial human rights legislation, by permitting at least a temporary leave from work, and considering various pandemic-related or illness related leave options.
Reporting obligations to OHS and Workers’ Compensation regulators and public health authorities
Investigating any positive test result reported by a worker for contact tracing, and to determine potential exposure in the workplace, is important to fully understand if the infection is work-related, and if so, who needs to know that information. These obligations may exist in addition to considering the possible application of any OHS or Workers’ Compensation notification requirements. It is the authors’ view that only COVID infections arising at the workplace or out of the course of employment need to be reported.
Collective agreement terms and potential grievances relating to PPE and worker safety
Grievances have become a significant forum in which occupational health and safety issues are being raised and addressed during the pandemic. Awareness of any concerns on the part of a union, and collaborating with those responsible for labour relations, may resolve issues before recourse is sought through the grievance/arbitration process, labour board or courts. It is important to involve other professionals such as HR or legal advisors in the discussion when faced with a union demand for information or action.
One measure to reduce the risk of the escalation of issues relating to COVID-19 would be to have any existing health and safety committee or representative involved in the process of responding to the pandemic. Every jurisdiction in Canada requires some form of cooperation with a health and safety committee or representative (where a minimum threshold of employees is met) in identifying and addressing workplace hazards or potential hazards.
Potential consequences of hazard escalation
Failure to identify, assess, and triage these issues in the workplace can lead to significant consequences.
At a minimum, complaints by workers to a number of different regulators or in multiple forums could proliferate. Human rights and privacy-related complaints can result in costly and time-consuming litigation. A few, quite novel, cases to date, where worker concerns respecting the level of hazardous exposure experienced, have escalated into demands for further action, as discussed below.
Court orders to take specific steps at worksites
Unions, in addition to the regulators, have used the courts to mandate employer action on an expedited basis to implement controls in the workplace. For example, an Ontario union brought interlocutory injunction proceedings (i.e. interim court order) related to appropriate OHS inspections and measures for masks and protective equipment in April, 2020. This resulted in a mandatory injunction (again court order) issued by the Ontario Superior Court of Justice, requiring that the long term care facilities in question provide access to fitted N95 respirators and other PPE when assessed by a nurse at ‘point of care’ to be necessary for the nurse’s protection (Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467).
Union drive for Criminal Code prosecutions
An interesting and rather novel platform appears to have emerged during the pandemic for unions to lobby publicly for Criminal Code prosecutions of employers for ‘criminal negligence’. In a few quite public instances, demands have occurred for such prosecution of employers and management, alleged to have mismanaged safety responses in the circumstances of the pandemic. In prominent cases, unions and the media have raised the possible use of the Criminal Code to prosecute alleged ‘criminal negligenc’” by meat processing plants where worker infections with the COVID-19 virus number in the thousands (Cargill in Alberta received ongoing negative media attention and protests arose despite Alberta OHS approving continued operations; Tyson in the United States has seen similar publicity) and in the long-term care sector (Service Employees International Union (SEIU) Healthcare has asserted requests for a criminal investigation to ‘hold negligent operators responsible’ following the deaths of three personal care workers (their members)). These efforts to seek criminal charges appear unlikely to gain traction given the very high standard for proving ‘criminal negligence’: which is the wanton or reckless disregard for lives or safety must be proven beyond a reasonable doubt.
Interestingly, a few unions have threatened to bring their own Criminal Code or OHS prosecution for alleged failure to protect workers, by bringing the cases themselves by commencing a private prosecution. This is possible if the union or an individual swears to an appropriate court official on information and belief that an offence has been committed. The last Criminal Code prosecution so commenced by a trade union in Canada was eventually withdrawn by a Crown prosecutor.
Any prosecution under the Criminal Code would take an extraordinary set of facts leading to the conclusion of a wanton and reckless disregard for lives or worker safety. We will continue to monitor developments to see if the investigation of individual circumstances or lobbying or private prosecutions by organised labour result in charges being laid.
Further novel issues and challenges: refusing entry to workers, returning travellers, customers and work refusals
Refusing entry in the pandemic
Workplace pandemic conditions have also drawn OHS advisors into interesting gatekeeping and management functions far beyond their traditional roles. One matter arising with regularity has been the question of whether to permit workers who have encountered conditions that are high-risk for COVID-19, or who have been ill with the virus, to return to the workplace. Here again, working with other professionals such as HR, legal and perhaps obtaining privacy advice may be appropriate for the OHS professional managing these circumstances.
If there is a reasonable basis for concern that the worker cannot work safely (they have recently travelled out of Canada, a close family member has been ill, etc.), the employer is generally entitled to insist that the worker provide confirmation in the form of objective medical evidence that the worker is fit to return to the workplace (In the case of out of country travel, at the time of writing the federal Quarantine Act requires a strict period of self- isolation, but this may evolve. This arises as a general principle of workplace law but also out of the OHS general duty clauses of Canadian OHS legislation. Generally, an assurance the worker can return safely is provided in the form of written confirmation from the worker’s treating physician. These same concerns and potential restrictions may apply to contractors, customers, patients or clients who normally access the workplace for work or services.
During the pandemic, it has become acceptable for employers to follow public health guidance on when (in relation to reported symptoms or passage of time) it is safe to return a worker, previously ill with the virus, to work without a note. In the circumstances and given public health advice, it may also be acceptable to request that a worker work remotely as a reasonable measure, if applicable to their position.
Work refusals in the pandemic
Employers, and their HR and OHS advisors, have by now likely encountered a range of work refusal circumstances, in which either general (‘I do not feel comfortable returning to work due to COVID’) or much more specific safety related reasons for not attending work or the workplace have been raised.
Where a worker has a reasonable belief respecting defined hazardous conditions in the workplace potentially affecting safety (this set of conditions varies widely by jurisdiction), the worker may be able to refuse to attend work or perform certain duties. Whether or not a work refusal is reasonable will depend on individual circumstances. Further, some workers are subject to restricted rights to refuse work, such as where the duties could present a danger to their health and safety, but the hazard is an inherent or normal condition of their work, or where a refusal to work would endanger the life and safety of others at the workplace.
In the event of a work refusal, in which a worker raises a health or safety concern, however generally it is articulated, the employer must respond under OHS legislation, taking steps to investigate (with safety representatives from the site as required by law) and reply to the safety concern.
In current circumstances, this may involve a detailed outline of safety steps being taken for a workplace newly reopening, to assure a worker or group of workers that all reasonable steps or practicable measures have been taken for their protection. This may involve discussing how to remedy the circumstances to eliminate or reduce the hazard, in accordance with OHS legislation. Novel means of investigating pandemic-related work refusals have arisen. Often the refusing worker has been permitted to participate in an investigation remotely, and if an OHS regulator is called to assist (if the matter escalates to this point without a response satisfactory to the refusing worker) he or she has often advised and made decisions remotely.
No reprisal for properly exercising a health and safety right is allowed to occur. OHS advisors must work with others in the organization to record any and all safety related details on a report of a safety concern or refusal, and ensure no discipline, threats or discharge occurs because of the refusal to work or exercise of a safety related worker right.
If a worker with a particular health condition claims they cannot return due to a specific medical or safety risk, as noted above, this may trigger an obligation for the worker to provide more specific medical information relating to why they cannot return to work. Employers may, in this case, wish to seek detailed information on any changes to the worksite such as enhanced safety measures for the particular worker (e.g. PPE such as a respirator, further distancing, or enhanced workplace hygiene) may permit the worker to return. OHS legislation requires measures to address the particular circumstances and, once again, this could include the worker’s particular medical condition.
You have a Covid case in the workplace! Response strategies
What if, despite taking all reasonable and practical measures in the circumstances of the particular workplace, to prevent an infection, you get that call: you have a COVID case! A worker is suddenly ill at work with all of the symptoms and indicators of COVID-19. Or the worker calls (or worse, a series of workers call), saying they are ill with those known key symptoms. The prospect of a case or outbreak, and its economic or reputational impact at this time, particularly as businesses are reopening and being re-established after months of the impact of the pandemic, will be daunting.
Based on our experience to date, available legislation, and public health guidance, we recommend the following step-by-step analysis and process for any report of a workplace COVID-19 case (note that additional steps may be required in a healthcare facility or hospital).
Isolate the worker promptly
If the worker is in the workplace, isolate the worker (hopefully at a prearranged medical room or location). If available a mask should be provided to the worker immediately for them to wear, and for any other workers providing direct care (e.g. first aid). Other workers who may have been in close contact with the ill worker should also be immediately isolated.
Public health and healthcare advice should be obtained
In most Canadian jurisdictions, local public health authorities recommend/require that they be contacted when a worker reports being ill with symptoms and indicators of COVID-19. Typically, a referral for testing is the next step, which is discussed in the next section. The worker’s own physician should be contacted by the worker, or if the situation appears to be an emergency, medical assistance should be sought promptly. Public health guidance may assist the employer in determining whether it is appropriate to send other workers home, which persons to notify, or even whether to close the workplace temporarily, especially if it appears multiple workers/members of the public/visitors have been impacted.
Public health may also require or recommend contact tracing in relation to those who have had ‘close contact’ or other contact with the worker. Before any potential COVID-19 outbreak in the workplace, employers should be maintaining a log of all workers and visitors in the workplace on a given day. This will allow for immediate and accurate contact tracing.
Testing and test results
Testing for COVID-19 should be requested to confirm any suspected case of the virus. Symptoms similar to COVID-19 can sometimes be the result of a bad allergic reaction or a serious case of other flu viruses, which do not have the same potential significant consequences. Transport of the worker to obtain medical assistance or to a testing facility should be provided, if possible. It should be emphasised to the worker/testing facility, that testing results are required promptly. The earlier testing results are provided to employers, the faster they can act with certainty to help control/minimise the spread of the virus. Communications, discussed below, should refer to testing being done, timing of expected results, and communications being updated as required, if it turns out a test result for COVID-19 is negative.
Whether a case of infection is suspected, or if it has been confirmed, a general principle of good workplace and crisis management is communication. Management or human resources/health and safety should communicate known details promptly. The purpose and scope of communication will depend on the circumstances: to alert customers or clients that a suspected case has been identified and they are being informed at the earliest possible stage; to alert affected workers or visitors/others that they may have been in the workplace or in close contact with the positive case and they may wish to be tested, for example.
Any communication need not, and should not, provide the name of the worker being tested/who is confirmed positive, or names of others being sent home from the workplace. General principles of privacy law and specific Canadian privacy statutes prevent disclosure of specific health information. It is best to communicate privately to those individuals who may have had close contact with the affected worker, and refer generally to the areas in which the worker may have worked or have been present. Reasonable information, to prevent harm, can be disclosed. The extent of disclosure should be sufficient to inform those who may have been exposed, but also protect the privacy of the worker who has or potentially has an illness. These obligations must be carefully balanced. Alberta’s Privacy Commissioner has provided guidance on the Retention of Personal Health Information here and here (last accessed July 14, 2020).
Employers should be aware that it is the policy of many provincial health officers to publicly identify the location of any COVID-19 outbreak, which includes identifying the name and physical location of the workplace. Even if an employer has taken all appropriate measures to limit the transmission of COVID-19 in the workplace, they should be prepared for negative media, customer and public attention due to the stigma associated with a COVID-19 outbreak. Those employers with internal or external public relations experts should plan to utilize them. Those that don’t should consider using an external provider.
Prompt communication to workers and affected parties, provision of honest and direct information, and communication respecting immediate measures being taken, can significantly lessen the negative publicity and damage to reputation associated with a publicised case or outbreak.
Reporting to OHS/Workers Compensation: Generally, across Canada, no requirement exists to report a ‘positive COVID-19 test’ to OHS or workers compensation authorities, unless it is clear that the infection arose from an exposure at the workplace.
If the infection clearly or arguably arose from an exposure at the workplace, it may be reportable. For example, if there have been other positive cases, or if a significant COVID-19 outbreak has occurred at the workplace, it will be difficult for the employer to take the position that the case did not arise out of the workplace. In many jurisdictions, health care or illness arising from an exposure at the workplace must be reported to Workers Compensation, and once that has been done, it must also be reported to OHS authorities, joint health and safety committee, trade union.
OHS and Workers’ Compensation legislation in the applicable jurisdiction should be consulted carefully for reporting obligations. Proposed amendments to Workers’ Compensation legislation to create a presumption of workplace infection in certain industries and circumstances have been made, in British Columbia and Ontario, but are not yet law.
In addition, in some jurisdictions, such as British Columbia, an employer is required to have developed and implemented a COVID-19 Safety Plan before reopening. In the event of a COVID-19 outbreak in the workplace, regulators will likely be asking for copies of that plan and evidence its requirements were actually implemented.
Should we shut down all or part of the workplace?
Shutting down all or part of the workplace ought to be considered carefully, depending on all of the circumstances. A decision to shut down a workplace pending confirmation of a positive test, may be premature, but in our view should be the subject of advice from local public health authorities. Upon confirmation of a positive case, an assessment of the number and frequency of contacts, and other circumstances should occur promptly. Amongst questions to be asked are:
OHS regulators may attend at the workplace (physically or by phone/virtually), and make the decision on a shut down for you. OHS may attend after any report of a workplace-related exposure, work refusal, or due to a worker complaint.
Communication with OHS regulators respecting the employer’s assessment of all the above factors, as well as providing relevant written pandemic processes, and protective measures being taken, is important in determining whether a stop work order may be issued, and a shutdown is necessary, pending additional measures.
While it is hoped that most employers and managers will not receive a call reporting a positive case of COVID-19, the above steps can guide a successful employer response, to minimise business, reputational and health impacts, to the extent possible.