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Key Policy and Operational Considerations for Employers Reopening their Doors

21-May-20

by McLennan Ross Labour & Employment Team

Alberta has recently announced the staggered reopening of our Province, with the first stage partially underway. While these are exciting times, they are equally uncertain. As businesses reopen, they remain under significant obligations to ensure that both their customers and employees are safe.

It is therefore important for employers to ensure that their workplace policies and procedures are responsive to this changing environment. Employers should consider whether they require the creation of new policies or the modification of existing policies.

We have prepared the following summary of some of the policy considerations that may arise.

Responding to Preliminary Reopening Concerns

Many employees have been in self-isolation or quarantine for the past few months and have been faced with a barrage of often negative news about the COVID-19 pandemic. As a result of these factors and many others, some employees may be hesitant or afraid to return to work. Others may outright refuse.

While employers are entitled to manage their workforce and require attendance at the workplace, it is important to handle these situations with caution and to seek advice if you are uncertain. Refusals and concerns may give rise to the employer’s duty to inquire further about the underlying cause for the employee’s hesitancy.  

Preparing a specific policy or procedure that outlines your response and the measures and protocols that will be in place to ensure the health and safety of employees is of key importance. Employers should review the Alberta Health and OH&S recommendations specific to their industry and tailor COVID-19 safety protocols accordingly. Clear communication with employees is critical and can help alleviate employees’ fears of returning to the workplace. Employers are encouraged to create a forum for employees to raise their concerns directly in advance of, or during, the return to work process.

Businesses are Opening; Schools are Not

One challenge that many employers may face is that many employees may be unable or unwilling to return to work because of child or dependent care obligations. This may give rise to an increased number of requests for unpaid leave or accommodation (such as modified work schedules, additional time off, leave of absences, etc.) on the basis of family status.

Under the Ministerial Order issued on April 6, 2020, which is still in effect, an employee is entitled to unpaid leave in order to meet the employee’s responsibilities in relation to a child due to the closures of schools or daycares.

It is important for employers to ensure they understand their obligations for accommodation and to review or develop policies and procedures on how accommodation requests will be handled. However, keep in mind that each accommodation request needs to be assessed individually. Any policy dealing with accommodating child care responsibilities should apply broadly to account for this.

Understanding your accommodation obligations and developing a  response system will also assist in responding to employees who are seeking accommodation because of physical or mental illness, whether related to COVID-19 or not.

Implications of Operational Changes

To meet physical distancing and sanitation requirements in the workplace, there will likely be some modifications in how your business operates. In addition to the public health guidelines established by governments, your business may wish to consider implementing additional policies or protocols to help maximize the safety of your workforce and minimize the potential for spread of the virus. Examples of such procedural changes may include:

  • Staggering start and finish times for employees to limit the number of people coming through entrances, exits, and elevators;
  • Staggering work breaks to limit employees gathering in communal areas and allow time for surfaces to be sanitized in between meetings and breaks;
  • Scheduling employee vacations to limit absenteeism, but also limit overcrowding;
  • Entering into a work share arrangement, allowing fewer people to be at the workplace on a rotating schedule;
  • Encouraging the use of payment by credit or debit card to eliminate the cross-contamination that comes with handling money;
  • Implementing sanitization requirements of multi-touch objects and areas (i.e. pens, meeting rooms, washrooms, etc.);
  • Reducing allowable capacities in any enclosed spaces (e.g., 1-2 people maximum in elevators, limiting the number of individuals in smaller meeting rooms where social distancing is not easily achieved);
  • Encouraging the use of teleconference, rather than face-to-face meetings;
  • Encouraging curb-side pick up or drop-off delivery where able; and
  • Placing security or an employee at the entrance to the work site to oversee the flow of traffic into the workplace – this will allow the employer to monitor capacity and limit access where necessary.

With these types of changes to the workplace, employers will need to be mindful of adopting or modifying their workplace policies. This includes careful review of policies related to hours of work, vacation, overtime, technology use, and privacy policies.

Individual job descriptions may also need to be reviewed in order to ensure they reflect the duties being assigned to each employee and to ensure there is a basis for effective performance management moving forward.

In some cases, additional staff may be required to perform some of these new tasks. In all cases where new staff are brought on, it is critical to ensure they have appropriate and enforceable employment agreements. This is particularly the case when some of these positions will be temporary in nature.

Working from Home

In some cases, allowing employees to keep working from home may be the simplest way to manage the risks that COVID-19 poses. This is especially the case where allowing for physical distancing, screening tools, and additional PPE is a challenge for the employer to provide. Limiting the number of employees in a workplace is still a best practice for employers where that is possible.

But having an increased number of employees working from home on an extended basis is not without its own challenges. Employers will want to ensure they have provided clear expectations to employees when working from home. This should be done by developing work-from-home policies or other flexible work arrangement policies. Employers also need to be cognizant of the human rights, occupational health and safety, workers’ compensation, and other issues that may arise when implementing these arrangements.

An increase in remote work may also lead to other workplace issues related to the use of technology. Employers should carefully review their policies that relate to technology use to ensure they continue to provide employees with the tools needed to accomplish their duties while protecting the security of the employer’s systems. Harassment policies should also be reviewed to ensure they encompass cyber-bullying and related claims.

Hygiene, Disinfecting, and Personal Protective Equipment (PPE)

There have been a wide range of recommendations from public health officials with respect to cleaning, sanitisation and personal hygiene. It is important to consider these issues and follow best practices.

Where PPE is required, a specific policy or procedure guiding its use is recommended. This will enable an employer to effectively manage the performance of those who fail to use the appropriate PPE or who use it incorrectly.

Addressing hygiene and protection will be useful to assure employees your workplace is safe, to ensure it is safe, and to protect against any subsequent claims or charges that it wasn’t safe.

Screening Practices

It has been recommended by the Government of Alberta that employers develop and implement daily screening of all staff and customers.

A large part of this screening will be reliant on your employees and patrons conducting a personal assessment based on the communications you provide. As such, it should be clear that individuals suffering from COVID-19 symptoms, such as fever, sore throat, cough, runny nose, or difficulty breathing, are not permitted to enter the workplace.

Employers may opt for a short form to be completed by employees prior to entering the workplace, encouraging each employee to consider personal health and the potential implications of having symptoms in the transmission of COVID-19 to co-workers and the general public.

Employers should be mindful that any health or other personal information that is collected from their employees is done in accordance with privacy laws. More aggressive screening protocols may be appropriate in some circumstances, but should be done after seeking legal advice.

Removal of Carriers

In an effort to respond to an outbreak and remove potential carriers, employers should track employees’ schedules closely and be able to quickly identify who was working with whom at a given time. This will allow employers to assist in the identification of individuals potentially exposed to COVID-19.

As part of this quick response plan, employers are encouraged to ensure that they have current contact information for their employees to allow for any urgent alerts to reach their team as efficiently as possible. To facilitate this tracking system, employers may need to consider transitioning to an updated scheduling system to more accurately track who is working and when. This may require a strict policy on scheduling and the requirements for shift coverages.

Communication

Policies and operational changes are meaningless if they are not clearly communicated. Communication is key to maintaining the safety of your employees and customers. Employers should stay up to date on the COVID-19 information provided by the Government of Alberta, and any updated policies should be provided to employees and posted in an easily accessible location. Clear communication of what is expected on the part of your employees will help them understand the crucial role they play in maintaining a safe and functional workplace.

Conclusion

While we look forward to getting back to business and serving the people and organizations who rely on your organizations, it is important to be mindful of the many legal and practical issues that will affect the success of return-to-work efforts.

For more information on this topic or any other Labour & Employment matter, please contact any member of our Labour & Employment team.

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