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In advance of the reopening of the economy, careful planning and preparation is important to bring employees back to the workplace. This includes ensuring that we maintain obligations under various legislation, including the Occupational Health and Safety Act, Employment Standards Act, 2000, and the Human Rights Code.

We have specifically prepared a top three list of do’s and don’ts for employers as we anticipate the re-opening of Ontario’s economy.

Top 3 Do’s:

1. Comply with workplace safety guidelines released by all levels of government to ensure the safety of workers and the general public as we prepare to reopen the economy.

In advance of easing the emergency measures imposed in response to the COVID-19 global pandemic, Ontario’s Chief Medical Officer of Health, as well as numerous health experts, have developed sets of guiding principles for the safe and gradual reopening of businesses. Employers should accordingly utilize these sector-specific guidelines to implement best practices and ensure the safety of their employees and customers.

2. Develop a procedure to address attendance issues and work refusals related to COVID-19.

Many employees may be afraid to return to the workplace as a result of the COVID-19 virus or alternatively, may have legitimate circumstances that prevent them from returning. Employers should develop a decision-making procedure to deal with these situations in a consistent manner and which also complies with the employer’s obligations under Ontario’s Occupational Health and Safety Act, Employment Standards Act, 2000, and Human Rights Code.

3. Implement and update work from home policies and accommodate reasonable employee requests.

COVID-19 has dramatically changed how many workplaces function and many employers (and their employees) have realized that they can achieve effective results without being physically present in the office. Employers and employees may accordingly consider maintaining a remote working arrangement, whether on a full or partial basis.

It is important to effectively communicate all practices to employees, including through the design of clear workplace policies which include guidelines for employee responsibilities and obligations. Further, if policy changes or new policies are being introduced to the workplace, employers should make sure that employees are aware of these changes.

Top 3 Don’ts:

1. Re-open workplaces before procedures are in place.

Employers should not be re-opening workplaces until specific guidelines are issued and implemented in relation to safe openings. Specifically, we recommend that employers consider doing the following:

  • Assess the physical layout of the workplace and modify it in accordance with social distancing guidelines where viable (i.e., 2 metres);
  • Assess and implement a gradual return-to-work plan;
  • Assess and implement staggered work hours to minimize the number of workers at the workplace at one time;
  • Assess and implement the use of personal protective equipment;
  • Develop and implement guidelines for employees on how to practice social distancing in the workplace; and
  • Develop and implement guidelines for employees who become sick or believe they are infected with COVID-19.

2. Underestimate the possibility of a COVID-19 outbreak in the workplace or the possibility of another government-mandated shutdown.

As Ontario begins to rollback preventative measures introduced to curb the spread of COVID-19, employers should be prepared for the possibility of having to partially or fully shut down the business again because of an outbreak or as a result of another government-mandated shutdown.

Employers should accordingly develop a contingency plan to ensure business continuity and respond to workplace disruption. This in turn may limit any potential employee layoffs, or terminations.

3. Terminate or discipline an employee who has primary caregiving obligations as a result of the COVID-19 virus.

Employers have always been required to be sensitive to their employee’s primary caregiving obligations. This expectation remains and has likely increased as a result of the COVID-19 pandemic and the closure of schools and daycares.

Employees have the right to be accommodated in support of their caregiving obligations. The employer’s obligation in this regard is to do as much as is operationally feasible to assist (to the point of undue hardship). This may include planning to have the employee work from home and/or adjusting their hours so that work and personal obligations can be balanced.

Employers should therefore not discipline an employee through suspension, wrongful dismissal, termination or otherwise for the above obligations. If this occurs, then an employee could be entitled to bring a human rights claim and may open the employer up to liability for damages. Employers should consult with an employment lawyer before taking any action against an employee asserting his or her caregiving rights.

For further information on the reopening of workplaces, including if you are an employee returning to work during COVID-19 and have inquiries including in relation to layoffs, human rights, wrongful dismissal and other issues, please contact Toronto employment lawyers, Sultan Lawyers at mlahert@sultanlawyers.com or here..

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