Clarence Bennett and Chad Sullivan

The May 8, 2020 announcement

On Friday, May 8, 2020, the New Brunswick Government made a significant announcement that the province was moving into the second phase of NB’s four phase economic recovery plan – the “Orange Alert Phase” – permitting the reopening of several businesses.

With this announcement came a renewed and revised Mandatory Order (the “Mandatory Order”). The new Mandatory Order allows a number of businesses to reopen their doors to the public and sets out the requirements these businesses must follow if they choose to re-open.

Significantly, the Mandatory Order requires employers to comply with both the guidelines from WorkSafeNB and the Chief Medical Officer of Health – like the most recent guidelines published by WorkSafeNB: Embracing the New Normal as we Safely Return to Work, Guidelines for New Brunswick Workplaces Re-opening in a COVID-19 Environment (the “Guidelines”).

New Brunswick seems to have the scales tipped heavily in favour of avoiding a “resurgence of transmission” by imposing some of the strictest requirements for workplaces attempting to open (or continue operating) during the ongoing pandemic.

As failure to comply with the Mandatory Order could result in significant fines, employers need to ensure they and their employees are complying with all the requirements in the Mandatory Order, the WorkSafeNB guidelines, and the guidelines from the Chief Medical Officer of Health.

What businesses can re-open?

The short answer – almost all businesses can re-open, including restaurants and other food and beverage serving businesses.

There are, however, some businesses which are still not allowed to open their doors to patrons, including:

• many sports and recreation businesses (e.g. swimming pools, spas, saunas, waterparks, gymnasia, yoga studios, dance studios, rinks and arenas, climbing walls, escape rooms, arcades, amusement centres, pool halls, bowling alleys, casinos);
• live performance venues (e.g. cinemas, aquaria, theatres);
• barbers, hair stylists and esthetics service providers;
• unregulated health services providers (this does not apply to home support workers who are still allowed to operate); and
• regulated childcare operators (scheduled to re-open May 19).

Employers must have a written plan 

One of the most significant requirements established by WorkSafeNB is the requirement for all workplaces, whether the workplace has continued to operate throughout the pandemic or is planning to reopen soon, to have a documented operational plan that specifically addresses COVID-19.

These plans do not need to be approved by WorkSafeNB but must be readily available if requested by either WorkSafeNB or Public Health for review. For employers that operate across various provinces, a plan which addresses the requirements specific to New Brunswick must be implemented.

An employer’s plan must address how the workplace intends to comply with the provisions of the Mandatory Order. In particular, the plan must address the following three provisions:

• owners and managers of every workplace must take every reasonable step to ensure minimal interaction of people within two metres of each other;
• owners and managers of every workplace must take every reasonable step to prevent persons who exhibit symptoms of COVID-19 from entering the workplace; and
• owners and managers of every workplace must take every reasonable step to prevent persons who have travelled outside New Brunswick in the previous fourteen days from entering the workplace.

The Guidelines provide a seven page template operational plan which addresses risk assessment, physical distancing, hand and respiratory hygiene, screening and monitoring, cleaning and disinfection, and Public Health requirements in the workplace. The template is a good start for the development of an operational plan but every workplace should tailor the template to the specific needs of its work environment.

Note that the template requires employers to keep a log of visitors and employees – so that employers will be able to notify individuals in case there is confirmed case of an infected person entering the workplace. Maintaining appropriate logs is a trend seen across all provinces and employers should make sure they are implementing policies to protect information gathered to respect the privacy of employees and visitors.

When physical distancing is not possible

For workplaces where physical distancing (two metre separation) between people is not possible, the Mandatory Order and the WorkSafeNB Guidelines impose additional requirements:

1. Face Masks: The Mandatory Order provides that face coverings are mandatory when physical distancing is not possible.  The WorkSafeNB Guidelines require employers to provide Personal Protective Equipment (“PPE”), such as face coverings and gloves, and training on the proper use and maintenance of the PPE to all employees for use when a two metre distance cannot be maintained. Surgical masks or N95 respirators are not required for persons who have no symptoms – cloth or other non-medical face coverings are permitted. Making face coverings mandatory when physical distancing cannot be maintained is a Canada-wide trend to attempt to reduce the risk of transmission.
2. Physical Barriers: WorkSafeNB recommends the installation of a physical barrier, when possible, to protect workers when physical distancing cannot be maintained. This could include the installation of plexiglas where workers must interact with the public. Cubicle walls may serve as an adequate barrier if the wall is a minimum of 54” high and is of material or “sufficient thickness” to prevent droplets from passing through the wall; however, the cubicle walls and work stations must be cleaned daily.
3. Temperature Testing: Where physical distancing or physical barriers are not possible, WorkSafeNB has indicated that employers must actively screen employees and customers for symptoms and risks of COVID-19 – including temperature checks of all persons who are entering the workplace through the use of a non-contact thermometer or other acceptable device. This active screening must be conducted at the beginning of every shift and repeated at least once every five hours. WorkSafeNB recommends asking a trained medical professional to take temperatures if one is available but a trained medical professional may also train others to take temperatures if necessary (this training should be documented).

Employers who are implementing temperature checks must ensure that employees give informed and voluntary consent before the employer can take and record their temperature. This includes ensuring the employee is aware that the employer may disclose the information to Public Health if the employee’s temperature is above 38°C.

WorkSafeNB has stated that if an employee refuses to have their temperature taken, an employer may refuse their entry into the workplace as part of their duty to ensure the health and safety of all employees in the workplace and the employer would not be obligated to pay an employee after such a refusal. WorkSafeNB’s FAQ section of its website can be accessed by clicking here. WorkSafeNB routinely updates this website with more directives and guidelines for employers.

The requirement of temperature testing (where physical distancing is not possible) has set New Brunswick apart from other provinces. While some jurisdictions have suggested that temperature testing may be permissible, no other province has made temperature testing mandatory. Employers should be diligent in maintaining records of the employees’ consent and have a plan for the protection of  information it gathers when conducting such testing.

Employees travelling between provinces for work

The NB government has maintained the restrictions on travel across NB’s borders and still requires all persons entering the province to be pre-approved by policy.

NB residents returning from outside the province and persons permanently relocating to NB are permitted entry but must follow the guidance of the Chief Medical Officer of Health, including self-isolation within NB for fourteen days.

Essential workers and workers who live in or near an interprovincial border community and who commute to and from work in the other province, who are healthy, are not required to self-isolate if they are travelling directly to and from work within NB.

For employers who are employing workers who must travel from outside NB, the employer must either:

• ensure the worker self-isolates within NB for 14 days after arriving, does not leave their isolation site, and follows the WorkSafeNB and Public Health guidelines before and after entering any workplace; or
• submit to WorkSafeNB, a minimum of 15 days in advance of expected worker arrival in the province, and receive prior approval of the isolation elements of the employer’s Operational Plan for interprovincial workers which must ensure that non-NB workers are, for fourteen days after they enter the province:
  • isolated from any New Brunswicker while they travel to and from their accommodations and worksite;
  • not in contact with any New Brunswicker during work hours and while off duty;
  • effectively supervised to ensure these isolation measures are met; and
  • compliant with any requirements set out by the Chief Medical Officer of Health or WorkSafeNB.

Right to refuse unsafe work & new job protected leave

It is always (whether in times of pandemic or not) the responsibility of the employer to ensure a safe and healthy work environment for all workers. If an employee does not feel safe, they may refuse to complete an assigned task. With the current pandemic, employers may see more refusals to do unsafe work.

However, any refusals to work must still follow the usual process of refusing unsafe work as provided under the Occupational Health & Safety Act (the “OHSA”). A general fear of COVID-19 will generally not be sufficient for an employee to refuse to work. Rather, an employee must demonstrate a specific concern within the workplace – which can eventually be escalated to an investigation by an officer appointed under the OHSA.

Further, in managing employees who refuse to work, employers should be mindful of New Brunswick’s new unpaid job protected leave.  Employees who are required to self-isolate (i.e. an employee under medical investigation for COVID-19) or who have familial responsibilities linked to the Mandatory Order may be entitled to take unpaid leave under the new COVID-19 Emergency Leave Regulation – Employment Standards Act, introduced on April 28, 2020.  The new regulations can be accessed by clicking here. This will be particularly important for workers who are required to care for their young children because of school or childcare facility closures.

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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