COVID-19 Developments and Legal Updates

Brian Johnston, QC and Brittany Trafford

Governments and employers are strategizing ways to open economies, businesses and services following unprecedented closures around the world.¹

In Canada, each Province is taking its own approach and various timelines will apply. For example, while Ontario has not set dates for its plan in the Framework for Reopening our Province, Manitoba’s Pandemic and Economic Roadmap for Recovery will be allowing retail businesses and hair salons among other service providers to open as early as May 4, 2020. However Manitoba’s businesses will be restricted to 50% occupancy of normal business levels or one person per 10 square meters. Quebec’s Reopening of Economic Activities will similarly start with retail stores with direct exterior access opening May 4, 2020 (and May 11, 2020 for businesses in the City of Montreal). Meanwhile, Alberta just announced its Relaunch Strategy on April 30, 2020 with Stage 1 of the plan tentatively scheduled for May 14, 2020 which will see some businesses and personal service operators resuming operation.

New Brunswick announced its Phased Re-Opening on April 24, 2020 and the relaxation of some measures came into effect immediately with an amendment to the State of Emergency Mandatory Order. The Plan outlines a phased approach with many businesses possibly being able to open as of May 9, 2020. New Brunswick has also published a Guidance Document of General Public Health Measures during COVID-19 which includes an outline of necessary measures for businesses, service providers and organizations who have been permitted to open during Phase 1 of the recovery plan. These requirements include having an “Operational Plan.” Below is outline of the phases published by New Brunswick:

Employers in New Brunswick must be aware of the additional requirements under WorkSafe NB’s COVID-19 Health and Safety Measures of Workplaces Policy which outlines actions to minimize risk of transmission.

Prince Edward Island has quickly followed suit publishing its own phased approach to Renew PEI Together. Phase one will begin today (May 1, 2020) with select outdoor, construction services and health care service providers allowed to start serving the public. By May 22, 2020 retail businesses and select indoor services will be allowed to re-open taking “every reasonable step to minimize interaction of individuals within 2 meters.”  By phase three, with a potential start date of June 12, 2020, restaurants, spas and hotels will be opening up for PEI residents only.

Newfoundland and Labrador announced a Plan for Living with Covid-19 based on five-stages of alert levels on April 30, 2020.  They are currently on a level 5 alert and anticipate moving to a level 4 by May 11 assuming certain conditions are met including no new cases of COVID-19. At a level 4 alert level, “low-risk non-essential businesses” such as accounting firms will be able to re-open. There is no projected date for reaching level 3, but once reached the Province will allow private health-care clinics, “medium-risk businesses” such as retail store and salons to re-open as well as restaurants with reduced occupancy. At level 2 “higher-risk businesses” can open which include larger retailers and shopping centres as well as “medium-risk recreational centres” such as gyms. While they are planning to open their economy, Newfoundland and Labrador also announced that travel restrictions will come into effect on Monday, May 4, 2020 which will bar entry to travelers seeking to come to the Province for non-essential reasons. Details of the restrictions have not yet been announced.

Nova Scotia has not released its plan for relaxing COVID-19 restrictions. Governments tend to be basing their recovery plans on four elements: 1) a decline in reported cases of COVID-19; 2) the capacity for broad testing of the population; 3) the ability to conduct robust contact tracing of any cases; and 4) capacity of hospitals. Nova Scotia has announced that they had only 12 new cases as of April 30, 2020 which was one of the lowest levels reported in recent days. The Government is also working to contact trace confirmed cases and it has been reported that it is trying to increase its testing capacity.² Based on the models announced by the Province in April, the Chief Medical Officer of Health was optimistic that the NS Health Authority could handle projected peak hospitalizations.³ All of these signs seem to suggest that we should expect a plan from Nova Scotia soon. Based on all of the other Provinces who have announced recovery plans, a staged or phased approach is likely.

Return to a new normal

Workplaces will not be “as before”.

The overriding goals in return to work are making best efforts to ensure employee safety while achieving productivity goals and being prepared for the possibility of resurgence, while adhering to applicable government expectations and legal requirements.⁴ Employees need comfort that best efforts are being made, but they must consistently maintain vigilance and adhere to all expected standards. Relaxation is not part of the new normal; set the bar high.

1. Making a plan

The return plan requires a staged approach. It’s not an “on-off” switch.

All employees should not return at once; and maybe some should continue to work from home if possible, with a rotational system put in place and being in reserve for normal workforce absences. Business continuity has to be built into the Plan.

The necessary redesigning of work and the workplace demands an extensive walk-through before the Plan is finalized and employees return.

Like all plans, this one will have to have a measure of flexibility. Nothing works perfectly, the Plan will need to account for that.

COVID-19 will be with us for a long time; the risks of growing employee complacency or exhaustion are real; therefore the Plan and employees will need to be re-energized from time to time.

Most importantly, the Plan has to respect and support your particular workplace culture.

2. Employee communication is key

Employees need to be updated on how the workplace will operate; preferably before they arrive at work. “On the job training” is the default; getting information out to employees before they arrive is much preferred.

An essential part will be communicating actions being taken to minimize risk of contagion and encouraging and mandating that such actions be embraced by employees. To state the obvious, you do not want transmission at work.

As part of that, consider any required employee training or informational reading that employees must complete before return to provide clear guidance on:

• Information employees must submit before return and the reasons it is required;
• Any testing or screening the employer will conduct daily or at other intervals, what it entails, how long it takes, when it will occur, and the reasons for it;
• How the employer will use the screening and testing information it collects and what it will do to otherwise maintain the confidentiality of that information;
• Any masks or other protective attire that will be required, who must furnish it, etc;
• Any self-checks (e.g., temperature, COVID-19 symptoms) that employees must conduct before reporting to work;
• Any changes in entry protocols, such as staged entry times to permit social distancing near entry doors, elevators, etc;
• Changes that impact food and beverages employees should bring from home, such as closure of employer cafeterias or nearby restaurants or discontinuance of employer-provided coffee;
• Closure of employer facilities or services to which employees may have used, such as onsite fitness centers and onsite childcare;
• Whether and when the employer is obligated to share reports of employee COVID-19 test results or symptoms with public health authorities;
• Protocols employees must follow to return to work following a COVID-19-related absence;
• Sanitation practices required of all employees; and
• Changes in policies, facilities, work rules, job duties, and processes that employees can expect upon return to facilitate social distancing.

Returning from a vacation is hard on employees and productivity; this has not been a vacation!  Employees will be returning to a dramatically changed work environment. As well, re-entering the workplace will be stressful for many who may already be experiencing extra anxiety.⁵ Employees should know the resources available to them.

After employees return to work, there needs to be constant effective reminders of best practices emphasizing all the available resources

3. Redesigning work and the workplace

This includes communicating the plan to reopen, changes in work schedules, training for employees, any screening processes or personal protective equipment that will be required, updates to policies, processes and protocols. Good communication ensures compliance by the workforce and clients as necessary.

(a) The physical work space

• • Ensuring ventilation systems are properly functioning; risk of airborne contagion is still being assessed.
  • Physical barriers to separate individuals to the greatest extent possible.
  • Rearranging furniture including workstations and common areas to ensure proper spacing and limit face-to-face contact.
  • Establishing traffic patterns with markers to direct foot traffic.
  • Designate where people must stand when waiting at reception or to use facilities
  • Develop effective ways to deal with visitors and third parties coming into the workplace

(b) Enforced physical distancing

Physical distancing is the future, even at work. Achieving this may require:

• • Scheduling employees in shifts so that fewer people are in work spaces and their arrival and departure times (along with break times) are staggered.
  • Restricting access to certain areas to limit co-mingling where employees work in separate areas or floors.
  • Eliminating in-person meetings with co-workers, clients and customers where possible; and ensuring that if they occur, distancing is enforced.

(c) Health screening

Passive health screening may include using signage outside and around the workplace to discourage those with symptoms or who have come into contact with an infected individual from entering the business.

Active screening would include encouraging self-monitoring of symptoms and the use of online self-assessment tools.

Requiring employees exhibiting symptoms of COVID-19 to disclose this to their employer in a confidential manner.

Employers screening employees must be cautious not to collect, use of disclose personal information about an employee which would breach applicable privacy laws including the Personal Information Protection and Electronic Documents Act (PIPEDA) where applicable. To implement health screening employers should have consent from employees and all screening questions should directly relate to ensuring the health and safety of employees in the workplace.

(d) Temperature screening

Temperature screening is one measure which is being widely discussed and debated. Temperature scanning involves using touchless temperature scanners to detect body temperatures over 38 degrees Celsius which is one symptom of COVID-19.

Touchless temperature scanners are the least invasive way to obtain temperature readings but the method is not without issues. While the process itself may seem reassuring, they do not detect asymptomatic individuals or those who are ill but do not have a temperature as a symptom.⁶

In New Brunswick, WorkSafe NB has mandated screening under the COVID-19 Health and Safety Measures for Workplaces that in situations where an employer cannot consistently maintain a two meter separation between people. Other provinces have not implemented similar requirements where, for example in Ontario, temperature screening is listed only as an “additional precaution” in the Ministry of Health Guidance of Industry Operators.

For many businesses, including those in NB who can maintain social distancing and who implement other strategies to protect their workforce, public temperature screening is not currently a requirement and is only one possible method of protecting the workforce.

Temperature scanning raises questions of privacy. Human rights and privacy legislation generally restrict an employer’s ability to require medical examinations and tests must be necessary to meet the Employer’s obligations under occupational health and safety laws. While in the US, the Equal Employment Opportunity Commission has stated that temperature checks are allowed at the workplace, Canada has not yet made that broad statement but has warned though the Office of the Privacy Commissioner of Canada that privacy laws still apply within the COVID-19 pandemic.

Employers must be careful that their collection, use and disclosure of personal information is not in breach of their legal obligations.

(e) Enhanced cleaning protocols

Adopting extra cleaning protocols and procedures are necessary. Consider “high touch” surfaces, e.g. entries and exits, elevators, stair banisters, restrooms, lockers, break room tables and counters, coffee machines, water coolers, copying machines, cabinet knobs in supply rooms, reception counters, telephones and touchscreens. Non-essential items from waiting rooms or reception areas that might be touched such as magazines should be removed. The Government is also advising increasing and encouraging personal hygiene practices.

(f) Personal protective equipment

Employers may provide employees with personal protection equipment including, gloves, eye protection, face masks, clothing or respirators. In New Brunswick, Work Safe NB has suggested that while medical masks are not required, non-medical masks and fabric face coverings are recommended where physical distancing is not possible. Employers requiring the use of personal protection equipment must ensure employees know how to use them.

(g) Travel

Some Provincial borders are closed to non-essential travel such as in New Brunswick, Prince Edward Island and Newfoundland and Labrador.⁷ Border closures will lift in time, but what used to be considered essential business travel is not so essential today. Most employers will have the goal of no business travel for a while and such travel will likely being traded for teleconferencing.⁸

Personal travel can be risky; employers will need to consider whether what constitutes personal travel of employer concern, what reporting measures are necessary and what restrictions are required or may result.

(h) Tracing measures

Your Plan should recognize the possibility of someone at work (an employee or a visitor) having COVID-19. Your Plan will need to be able to support effective tracing.

(i) Update workplace policies and mental health supports

There have been lots of changes with new leaves, directions and expectations. Capturing them in policies will help.

There will be more requests for accommodation and leave requests. Being away from work has been hard on everyone, returning to a different looking workplace will not be easy. There will be issues. Be prepared.

Worldwide recovery plans

Countries and businesses across the world are working hard to implement similar plans and strategies to re-open their economies as seen in Canada.⁹ In the United States, the Government has announced its guidelines for Opening up America Again. Plans are in motion there despite struggles containing the virus and optimism is evident as large retailers like Macy’s plan to re-open their stores across the United States in 6 to 8 weeks.¹⁰

The world is watching carefully as China, one of the largest economies impacted by COVID-19, gradually re-opens business and major brands implement their carefully planned methods for containing the spread of the virus.¹¹

Many lessons will be learned in the coming weeks as recovery plans continue to roll out and employers do their best to ensure safety and productivity in this new reality.

¹ The Johns Hopkins Coronavirus COVID_19 Global Case Map Dashboard shows the breakdown of worldwide cases of the virus.  Maclean’s also has a map of coronavirus cases in Canada.
² “Nova Scotia looks to expand COVID-19 testing to better understand virus’s spread” CBC, April 29, 2020
³ N.S. COVID model says health care can cope with first peak if “good compliance.” National Post, April 14, 2020
⁴ “A five-layered defense for workplace reopening,” The Harvard Gazette, April 24, 2020
⁵ Worry, Gratitude & Boredom: As COVID-19 affects mental, financial health, who fares better; who is worse? Angus Reid Institute, April 27, 2019.
⁶ “Some countries use temperature checks for coronavirus. Others don’t bother. Here’s why” Washington Post. March 14, 2020.
⁷ New Brunswick Renewed and revised Mandatory Order COVID-19; PEI Travel Notice; NFL Travel Advice
⁸ “Business Travel has Stopped. No One Knows When it will Come Back,” The New York Times, April 20, 2020
“Coronavirus Won’t Kill Leasure or Business Travel, but it will Change them Significantly, Perhaps Forever,” Forbes, April 15, 2020
⁹ “Coronavirus: Some Countries move towards re-opening as Covid-19 deaths raise.” Global News, April 26, 2020
¹⁰ “Macy’s Plans to Reopen all of its 775 Store in 6 to 8 Weeks.” The New York Times, April 30, 2020
¹¹ “Lessons from China: How global business has changed forever” CNN Business, April 30, 2020.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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