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Covid-19 | Newsletter

Return to Work After COVID-19 Shutdown: OHS Law Compliance, Best Practices and Due Diligence

Fasken
Reading Time 26 minute read
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"Do" Diligence: OHS/WSIB Newsletter

The coronavirus, that results in the infection known as COVID-19, has resulted in a pandemic. The worldwide effects have been catastrophic; senior citizens, those with underlying medical conditions, respiratory diseases, and other co-morbidity illnesses are at the greatest risk. COVID-19 has also resulted in an unprecedented non-wartime exercise of emergency powers by governments around the world to reorder supply chains, authorize expenditures and shut down "non-essential" businesses and workplaces.[1]

The symptoms of COVID-19 are often indistinguishable from other respiratory infections. They include fever, cough, sore throat, headache, fatigue, myalgia, breathlessness and conjunctivitis. Fever is not present in all cases. Within one week of experiencing symptoms, those infected may contract pneumonia, experience respiratory failure, or die. Other medical complications displayed by those with the disease include acute lung injury, shock, and acute kidney injury.[2] Nausea, vomiting, and diarrhea are not frequently present in COVID-19 patients.[3] The World Health Organization (WHO) has identified aches and pains, nasal congestion, loss of taste or smell, rash, and discoloration of fingers or toes as additional symptoms.[4]

The pandemic has resulted in governments around the world, including the Canadian federal and provincial governments taking unprecedented non-wartime actions to reduce the spread of COVID-19 to protect Canadian citizens, and shutdown a great deal of socio-economic activity. From public schools to colleges and universities, education has either gone online or stopped altogether. Domestic and international travel, especially by air, has been restricted to only essential travel.

Provinces have coordinated the use of emergency management legislation across Canada, the collaboration of the federal government, the use of force of law to ban businesses from opening, operating, and selling their goods or services.

The toll on human life of the COVID-19 pandemic has also taken a toll on the provincial and the federal economies and the gross domestic product. Canada is now clearly, and for the foreseeable future, in an economic recession. It is a difficult challenge for governments to strike the right balance between protecting the population from the spread of COVID-19 and also protecting the socio-economic essence of a nation.

The good news is that public health initiatives, emergency measure orders, and the cooperation of a motivated Canadian population has reduced the spread and the rates of COVID-19 infections, both confirmed and presumptive.

As a result, governments across the country are now considering and are in the process of "reopening" the economy and allowing businesses and organizations to slowly commence opening up their workplaces. As a result, the challenge becomes how to open up workplaces while keeping workers and their customers and clients healthy and not exacerbating the COVID-19 pandemic with a resurgence or second wave.  

This article is not legal advice, but is intended to provide guidance on three key areas that sometimes are overlooked in the COVID-19 pandemic discourse; first, OHS law and compliance, second, OHS best practices, and third, the OHS legal defence of due diligence, as defined by the courts.  

I have delineated 12 steps for the re-opening of businesses and the return to work after a COVID-19 pandemic.

1. Establishing COVID-19 Planning Task Force for Your Organization

Perhaps you have started a planning task force at your workplace, but the establishment of a COVID-19 planning task force is essential. The particular name you give to this small but important group of individuals who will staff this planning task force is irrelevant. There are several key elements that must be considered by the establishment of your planning task force.

First, there must be a clear, strong mandate from the board of directors or the chief executive officer on behalf of the organization. The tone from the top is essential for leadership during a crisis, then leadership during the COVID-19 pandemic is critical. From my experience, I have seen some leaders rise to the challenges, some leaders shrink in the face of adversity, and some just hide until someone else tells them it is safe to come out from under their beds. The COVID-19 pandemic is a time when leaders need to lead and also surround themselves with talented colleagues who together will manage the mandate from the board. Shareholders and stakeholders depend on this planning task force.

Second, the planning task force must be multi-disciplinary, multi-skilled and multi-generational. To ensure compliance with OHS legislation, best practices and due diligence the task force must be diverse. The planning task force should include the CEO; operations and facility senior management; human resources and occupational health and safety senior management; sales, marketing, and communication senior management; as well as CFO and financial senior management.

Joint Health and Safety Committee ("JHSC") members, representing management and workers, need not be on the planning task force, but we recommend they be ex officio members of the planning task force. Canadian OHS laws may provide only an advisory role for JHSC's but they provide a critical role for worker engagement, OHS compliance, worker communication and due diligence.

There is also an important role for external advisors to provide the planning task force with the best information, and the highest level of expertise, as quickly as possible. We strongly recommend that organizations secure access to informed medical advisors, legal advisors, and other related professionals including industrial hygienists and/or Canadian Registered Safety Professionals ("CRSP")[5].

Finally, the planning task force must have decision making authority and financial spending authority. Although these elements may not be delegated directly to a planning task force, they must be at the disposal of the chair of the planning task force and are a critical aspect of its governance mandate and success.

Further, the planning task force must come to grips with the fact that, like any workplace health and safety hazard, COVID-19 needs to be managed professionally, carefully, and rigorously. Workplace hazards have been managed for decades and centuries for the protection of workers. OHS law requires employers and other workplace stakeholders to take every reasonable precaution for the protection of the safety of workers and related individuals, such as customers and clients.

2. Set Clear Goals and Methodology

Step 2 is to set measurable goals. I believe only two goals are necessary, but more may be identified by the planning task force.

The first goal is that the task force will optimize worker and public health and safety at every stage in the return to work after a COVID shutdown process. The second goal is to achieve maximum business or workplace recovery, without compromising the first goal.

By keeping the goals clear, concise, and cogent, the planning task force will more easily be kept on track, not compromise worker or public safety, while at the same time, moving the organization towards an orderly, safe, and legally-compliant return to work after a COVID-19 shutdown.

The methodology we recommend is to use a hazard assessment of the potential exposure to COVID-19 at the workplace. Identify, assess, and either eliminate or mitigate the hazard. The hazard of the virus must be fully understood, objectively, medically and in relation to the workplace. The assessment is a workplace hazard assessment, not a public health assessment. Then, in preparing to re-open workplaces after a COVID-19 shutdown, mitigation rather than elimination of the hazard and related health exposure is required.

3. The Legal Framework for Return to Work from the COVID Shutdown

COVID-19 is both a public health and an occupational health and safety crisis. It affects workers, customers, clients, and especially patients of health care facilities, nursing homes and homes for the aged. The seriousness of the risk, co-morbidity challenge, and fatal consequences of mishandling the hazard in workplaces that are nursing homes, homes for the elderly and chronic care facilities is beyond the scope of this article. Further, the article is describing a presumptive return to work of a business or workplace that has been shut down by either emergency management legislation or voluntarily, because of a perceived or real unmanageable risk associated with continuing operations.

There are, in the author's view, three primary aspects to the statutory and legal framework of the return to work from a COVID-19 shutdown. Each of those three major statutory frameworks will be reviewed below.

First, emergency management legislation, invoked by provinces, has used the wartime powers in the COVID-19 pandemic to control re-opening. For example, in Ontario, the Emergency Management and Civil Protection Act ("EMCPA") [6] has issued, through regulations and Orders, numerous, Draconian legal direction for businesses and workplaces to be closed. Similarly, on the "reopening" of the economy and in preparing for a return to work after the COVID-19 shutdown, employers need to have confirmed that they are legally permitted to return to work.

Some businesses have "pivoted" by changing part or all of their operations, based on the list of essential businesses/workplaces. For example, one Canadian manufacturer of brand-name winter coats and outerwear has changed part of its operation to manufacturing of medical supplies, including gowns and masks. This example of pivoting, allowed the business to, in part, stay open when it otherwise would have been required by law to be closed by operation of orders issued under the EMCPA. We recommend that businesses and workplaces obtain legal advice with respect to their ability and timing of the return to work. Many employer, industry, and trade associations have been helpful in providing guidance to their members regarding this issue.

The second statutory framework of a return to work plan must include a review and update of public health authority guidance, and in some cases legal Orders. In Ontario, for example, the Health Protection and Promotion Act (HPPA)[7] gives authority to the Ministry of Health to manage, regulate, and communicate concerns with respect to the public health in the province of Ontario. The role of public health authorities is key in providing public health warnings, guidance, and assistance to both the public and their government departments on managing the COVID-19 pandemic. Under the HPPA, the government used its legal authority under the EMCPA, to effect social-economic suspension of activities and shutdowns.

Third, the planning task force must consider all aspect of OHS law in each applicable jurisdiction where the business or workplace operates. In Ontario, for example, the Occupational Health and Safety Act, R.S.O. 1990, c.0.1, as amended ("OHSA"), is based on the internal responsibility system, with overlapping duties, rights, and responsibilities for a variety of workplace stakeholders, not just employers.

Compliance with the OHSA in all Ontario workplaces is critical for the planning, preparation, and participation in the return to work for any workplace. Failure to understand and comply with the extensive OHSA provisions operating under the internal responsibility system can lead to enforcement activities by the OHS regulator. Enforcement of the OHSA is by the legislative powers of the Ministry of Labour, Training and Skills Development ("MOL") inspectors' Orders to stop work, make workplace changes and even prosecute companies, directors and officers of the corporate employer.

Another important, but often overlooked aspect of OHS law in Canada, is its applications to owners, landlords, management companies and tenants of buildings where workplaces are preparing to return to work. The COVID-19 pandemic has made these stakeholder duties for all parties that own, manage and occupy buildings more important than ever. A safe and well-managed return to work from a COVID pandemic shutdown will result in building owners, tenants, and building management becoming engaged and involved in legal compliance and public health best practices, giving rise to due diligence.

 4. COVID-19 Policy and Program

OHS law across Canada requires employers to have a policy, a program to implement the policy, and to review them annually. During the COVID-19 pandemic, employers must, in order to ensure OHS law compliance, develop or augment an existing pandemic preparedness policy and program. This is not the same as a Business Continuity Plan ("BCP"), but may be part of a BCP.

OHS law does not permit an employer to simply rely upon a general OHS policy and program to deal with the COVID-19 hazard. Although health and safety associations have provided guidance documents, they are not legal advice and cannot simply be adopted by an employer. They are not a replacement for a workplace specific policy and program to deal with the hazard of COVID-19 in a specific workplace.

A COVID-19 policy should identify the goals of the policy, commitments to workers, and ownership or responsibility for the implementation of the policy.

A COVID-19 program, to implement the policy, is more detailed and complex. It needs to say clearly who is in charge of implementing the program. It must say who has responsibilities and roles within the program. It should cover what occupational health and safety measures are being taken to protect workers, customers and clients in and around the workplace due to the COVID-19 hazard.

The effectiveness of a COVID-19 program may be measured by the degree to which it addresses the questions, concerns, and even fears of workers who are being asked to return to the workplace. The author recommends a frequently asked question (FAQ) section be included in the program, with input from the JHSC. It is beyond the scope of this article to deal with each and every element that must be included in a COVID-19 program. However, it is critical that such a program be prepared, specific to the workplace in question, to ensure not only legal compliance, but also to be able to establish the legal defence of due diligence in the courts, if that becomes required.

5. Preparing the Workplace

Information provided by epidemiologists, public health officials, and other medical sources confirm that COVID-19 cannot generally survive outside of a human host for more than 24 hours.[8] Therefore, if the workplace has been closed and no workers have been in the workplace for more than 24 hours, it is unlikely that any COVID-19 virus will be on any surfaces in the workplace. This means that a re-opening of the workplace that had been closed for more than 48 hours, is generally going to be free from any COVID-19 virus.

However, the absence of the COVID-19 virus does not necessarily mean the workplace is healthy, safe or ready to re-open. For example, if a restaurant or grocery store has been closed, with food or produce, bacteria may grow, and viruses may spread. Therefore, it is critical for the re-opening of a workplace, and preparation for return to the workplace, that a detailed hazard assessment of all workplace hazards be completed, not just COVID-19.

The traditional hazard assessment of workplace health and safety hazards may not be sufficient to prepare for a return to the workplace after a COVID-19 shutdown. Therefore, the hazard assessment methodology used by the employer must be comprehensive, complete, and convincing. There must be a hazard assessment methodology that identifies, assesses, and either eliminates or mitigates against the hazard.

A number of checklists have been developed and are available from workplace safety associations to help prepare the workplace by way of hazard assessments. These may include, but not be limited to the following:

  • review building heating, ventilation and air conditioning systems, and related hazards;
  • consider an intensive, deep cleaning, of the entire workplace, and especially frequently touched surfaces by workers and visitors;
  • identify access and egress restrictions, exposures, and spatial limitations to ensure social and physical distancing;
  • consider access screening of workers, by the issuance and receipt of worker questionnaires, at the point of entry to the workplace;
  • consider the use of body temperature screening or scans, used by gun thermometers or general screening panels to monitor the presence or absence of fever, a key symptom of a person infected by the COVID-19 virus;
  • review workplace layout, design, work stations, and worker movement throughout the workplace to maximize social and physical distancing;
  • consider hours of work, work schedules, and planning for reducing the head count, and increasing physical distancing within the workplace;
  • applying and implementing the hierarchy of controls for COVID-19 as a hazard, to minimize exposure to the hazard.

When all of these are done, this will help the preparation for the return to the workplace with confidence and safety.

6. Preparing the Workforce to Return to the Workplace

The planning task force must communicate with the workforce in preparation of the return to work. There is nothing more important than assuring workers, before they return to the workplace, of all that the employer has done to prepare for re-opening properly. Communicate clearly, concisely, and consistently with the workforce as the workplace prepares for its reopening. I also recommend that the two goals, covered in Step 2 above, be reiterated by the planning task force in the communication with the workforce before the return to work.

Communication by the planning task force to the workforce should include reference to consultation with the JHSC. Members of the JHSC who have been involved in the planning process, should also be identified.

The communication to the workforce should also confirm the changes to the workplace layout, workplace hygiene practices and procedures, and also worker access, and egress from the workplace. The details for each specific workplace must not only be set out in the COVID-19 program, but also communicated to the workforce before it returns. We recommend a series of online webinars or video conference meetings, to advise workers of the timetable, procedures, and new look of the workplace well before the workplace is re-opened. We recommend that you invite workers to send in their questions, and make sure a FAQ document is developed, enhanced and updated as more questions come in from workers in anticipation of return to work.

In advance of the date when the first workers return to work, we recommend that that a first day back questionnaire and screening protocols be communicated to workers. There may be nothing more unnerving for a worker, anxious about their health and safety due to COVID-19, than arriving at work for the first day and being surprised by a request to fill out and complete a questionnaire. Further uncertainty and legal issues relating to personal privacy may be raised if body temperature screening or scanning technology is being used at access points to the workplace.

Therefore, it is critical for the planning task force to let workers know, in advance, and repeatedly, what the workplace will look like and what rules need to be followed when workers are asked to return to work. All of this, through a well-executed communication plan, can also be the basis of sales and marketing communications customers and clients. Customers and clients that know that a workplace is taking care of its workers and communicating well with them will have confidence that the hazard assessment process has taken place, that the workplace is safe, and that the workplace, especially if it is a retail outlet, is safe for the customers and clients to use and attend at once again.

7. Preparing to Serve Customers and Clients in the Workplace

This topic complements the one above, although it focuses on customer and client health and safety. This section is not intended to apply to health care facilities, nursing homes, and homes for the aged. They, of course, were not shut down during COVID-19, and do not require reopening. However, they do require a significant, improved attention from government and regulators, given the number of cases and fatalities during the COVID pandemic that occurred at these facilities.

The planning task force must require a hazard assessment of the workplace for the health and safety exposure of customers and clients. The same methodology and hierarchy of OHS mitigation steps and controls that OHS professionals use on a regular basis could be applied to customers and clients.

Since COVID-19 may actually be brought into the workplace by customers and clients, control measures must form part of the overall hazard assessment methodology used in preparing to reopen the workplace. Sales and marketing executives on the planning task force will be essential in this preparatory step. Customer and client sensitivity, and unpredictability, can be addressed by a marketing and sales plan to embed mitigation controls in dealing with customers and clients.

Effective messaging on new steps, access to retail space physical distancing, entrance questions by security or sales staff, and proper signage to inform customers and clients of the company's commitment to their health, safety, and well-being is essential.

The classic public health cautionary steps for customers and clients must also be considered. These include, but are not limited to, the following:

  • social and physical separation/distancing;
  • physical transmission protection and barriers of workers from customers and clients, including, but not limited to, Plexiglas barriers, masks, and visors used by staff;
  • intensive and frequent cleaning of regularly touched surfaces within the workplace;
  • enhanced handwashing and personal hygiene commitments by the employer and communicated to customers and clients;
  • temporary closure of washroom/restroom facilities.

Commitment to customer and client health and safety is not just good business practice, but it is also the law. OHS law requires that any workplace that has customers or clients (or patients) must be attentive to their health and safety, as well as that of workers.[9] Complex, multiuse workplaces such as retail stores, educational facilities, and fitness facilities are governed by OHS laws, as well as public health guidelines. If there is a COVID-19 hazard to a customer or client, there is also a potential hazard to a worker. OHS law, indirectly, may protect customers and clients as well as workers.

8. First Day Back at Work

The first day back at work for workers who have been sent home, or who have been working from home, may be full of worry, anxiety, and even fear. The best way for an employer to prepare for the first day back at work is to plan, prepare, and execute on the results of the COVID-19 hazard assessment discussed above in Step 2. An additional element that is essential is the communication to workers well before they return to work, with a consistent message when the workers actually enter the workplace for the first time after a COVID-19 shutdown.

Practical steps that must be taken by all employers, consistent with the COVID-19 policy and program of the employer, include but are not limited to the following:

  • workers must complete a screening questionnaire, and have it handed in, either before or soon after they arrive at the workplace;
  • the worker questionnaire must follow the mandatory questions promoted by health authorities, in order to ensure that there is sufficient documentation of communication and adherence to new screening policies by the employer;
  • employers must decide whether or not they will conduct body temperature screening and scanning as part of the access protocol to the workplace;
  • supervisors should meet, greet, and provide instruction to workers upon their entrance to the workplace;
  • supervisors should go through the return to work checklist, instructions, and new rules for all workers in person and document the instructions;
  • a representative of the planning task force should communicate, in person, by phone, or by video conference a warm welcome back to work and a reminder of the commitment of the organization to the health and safety of workers, customers, and clients;
  • workers must be provided with information on how they raise questions, concerns, and complaints about their health and safety, as well as that of customers and clients in the workplace;
  • if an anonymous whistleblower hotline has been set up, that did not exist before, clear and easy access to this whistleblower hotline must be provided on the first day of the return to work;
  • supervisors should stay in touch with workers throughout the first day, week, and transition period to working during the COVID-19 pandemic;
  • supervisors should be provided with support by their managers and the planning taskforce for their frontline supervision execution of the COVID-19 program, and also for their emotional and mental health.

Although the above is not a complete checklist, the first day back at work undoubtedly will be a challenge for many workers, employers and workplaces. The COVID-19 hazard assessment may acknowledge that there is no way to eliminate all risk of COVID-19 from affecting workers at the workplace. However, with the rigorous hazard assessment described above, and ongoing vigilance and support of workers, a relatively calm, organized, and systematic execution of the COVID-19 program will assure workers that management and the planning task force has done its job, and has achieved its two goals of Step 2.

9. Monitoring the Provision and Enforcement of COVID-19 Program

The success of any OHS best practice uses a managed systems model. This requires ongoing monitoring, supervision, and enforcement as part of the system. For example, a speed limit sign beside the road is of no use to stop street racing if there is no effective monitoring, supervision and enforcement of the law. Similarly, every employer's COVID-19 policy and program must be monitored, supervised, and have enforcement in order to be a managed system.

Monitoring is achieved by ongoing observation, communication and dialogue between supervisors and their workers. There will be an enhanced supervisory role in the implementation of the COVID-19 program. Allowance must be made for supervisors to be supported and to be relieved of other, non-essential roles, during this period of time.

Monitoring may also be achieved by workers, through a whistleblower hotline, to enhance communal transparency. Now may be the time for organizations to seriously consider introducing a whistleblower hotline, that may allow for anonymous tips of genuine and important breaches of the COVID-19 policy. A marginal, incremental cost of introducing a whistleblowing service for an employer, may help ensure and reinforce the OHS due diligence defence.

Supervision must also lead to enforcement. Counseling and coaching, must still come before worker discipline. However to comply with the serious implications of the hazard, a COVID-19 program must also have a disciplinary accountability mechanism.

The policy and program must include worker discipline, up to and including discharge, as a last resort. The spread of COVID must be stopped from coming in to the workplace. The health and safety of workers, customers and clients depend on it. The willingness to demonstrate accountability through discipline must be embedded in the program, and also must be acted upon if serious and continued breaches occur.

10. Responding to COVID-19 Concerns and Complaints

There are three types of responses that employers should plan for before they reopen their workplaces regarding their COVID-19 policy and program. First, questions from workers, customers and clients made in good faith. Second, complaints by workers, customers and clients about elements of the COVID-19 program, practices or procedures with which they disagree. Third, flat out work refusals based on the legal right of a worker, in every Canadian jurisdiction, to refuse to do work that is believed to be unsafe.

Genuine questions about aspects or elements of the COVID-19 program, both before and after workers return to the workplace, are inevitable, and should be welcomed. Concerns such as "where do I get my PPE" or "why do I have to have a body temperature screen take place before I enter the workplace" should be expected. Employers should be prepared to answer these questions and prepare their supervisors to do so. Preparing and regularly updating the FAQ section of their program can help. Questions demonstrating engagement by workers are generally another opportunity for the employer to communicate its good faith concern for the health and safety of workers, customers and clients.

Complaints may also be predicted as part of the return to work from the COVID-19 pandemic shutdown. Some workers will raise the complaints or objections to current procedures because they genuinely have thought about the issue and believe the employer is not handling the COVID-19 program element and issues correctly. Other workers may compare your return to work procedures with other employers they are aware of in the same industry, to determine if things are done differently, or better.

Complaints in and of themselves should not be discouraged. However, complaints must be taken seriously and addressed, investigated, and responded to. Complaints may indeed be an important warning sign that workers are not happy with the COVID-19 program, in some or all aspects. Unresolved complaints need to be brought to the attention of the planning task force and dealt with at the appropriate level.

Finally, work refusals are likely, in the writer's view, inevitable. In the course of my law practice I have dealt with many different work refusal legal questions and situations. The starting point for the review of this topic is clearly the legal right of every worker, under OHS law in Canada, to refuse to do work that is unsafe. In most jurisdictions, the initial threshold of refusing to work is low. It is a subjective or perceived sense of work being unsafe. There need not be any objective or measurable evidence to support the worker's view, to allow the worker to legitimately refuse to do unsafe work.

I have addressed the multi-jurisdictional differences of work refusal legislation across Canada in my book Canadian Health & Safety Law[10]. Although the procedure varies a little from jurisdiction to jurisdiction, suffice it to say that the worker's supervisor and the employer have the duty to take a work refusal by a worker seriously. This is particularly important in the COVID-19 context.

The work refusal process requires the employer to investigate and resolve the matter internally, under the internal responsibility system. OHS regulators across Canada do not have enough inspectors or investigators to investigate every work refusal in every workplace that arises from the COVID-19 pandemic.

If the matter cannot be resolved internally, and the worker continues to refuse to do unsafe work, the law requires that the worker have an objective basis to support the continuing refusal. In other words, if the supervisor and perhaps a technical expert have addressed the worker's concern, in the presence of a worker member of the JHSC, the employer has legitimately responded to the worker's COVID-19 anxiety. If the matter is not resolved internally it will be resolved by an OHS inspector.

The determination is usually based on the OHS inspector's assessment of whether the worker's objection is "likely to endanger the worker" or not. The OHS inspector, , does not have the right to order the refusing worker back to work. However, if there is no proper basis for the work refusal, as determined by the OHS inspector, presumptively the worker will return to their job or face disciplinary action by the employer.

All of the above mentioned types of inquiries: questions, complaints, and work refusals, should be anticipated by the planning task force. The mere fact that any or all of them occur is no indication of the inadequacy of the COVID-19 program. It may simply be an expression of the high level of anxiety, concern, and fear associated with the COVID pandemic, real or imagined.

11. Preparing, Managing and Reporting Health Concerns

COVID-19 has resulted in hundreds of thousands of cases, illness and even deaths worldwide. In the digital media age, the communication of this information is faster than ever. This may result in workers feeling overwhelmed at the prospect of returning to work. This fact should not be lost on the planning task force, senior management or supervisors who interact daily with workers.

One of the key issues that the planning task force must be prepared for is the possibility that a worker will test positive for COVID-19. The employer must have, as part of its program, a reporting protocol.

Workplace accidents and injuries of course may be required to be reported to OHS authorities as prescribed by OHS law. Health exposures that result in serious illness or worse, may also be the subject of worker's compensation applications and claims.

In addition to the abovementioned statutory reporting obligations, there is also the requirement to report COVID-19 presumptive and confirmed cases to the local health authorities in each province. Who is responsible for this reporting in the workplace?

The applicable public health authority may vary from jurisdiction to jurisdiction across Canada. Look up your local responsibilities on the internet and you will get the information that needs to be put into your COVID-19 program document. The employer's COVID-19 program should give simple, clear and specific information to local management to deal with this possibility.

Finally, employers should have a communication program and strategy to address its workforce that a presumptive or confirmed case of COVID-19 has occurred. The identity of the individual should be protected, if possible, but those in the same work area, floor, or even workplace, should be notified. This is a reasonable precaution to take to ensure others who may have been exposed to the worker who had COVID-19 to seek medical attention, be tested, and potentially self-isolate away from the workplace for 14 days. Medical attention should be sought and obtained by the planning task force to ensure that the medical, guidance given in the program is proper and sufficient to meet public health authorities guidance.

12.  Management System Review for the COVID-19 Policy and Program

A critical hallmark of any managed system, whether it be an ISO 45001 safety management system, or a less formal and rigorous COVID-19 program and policy is to review, revise and repeat. These three Rs of a managed system ensure that the planning and doing results in feedback loops to ensure the reliability, accuracy and efficacy of the managed system. Further, when changes are needed, there must be immediate change to the policy, program, and communication to workers and their supervisors.

Suffice it to say that the evidence necessary in OHS law to establish the due diligence defence is the effective implementation of your COVID-19 program.

The due diligence defence does not require a standard of perfection, but rather a standard of reasonableness. Put differently, has the employer taken all reasonable precautions in the circumstances for the protection of workers. However, a COVID-19 program is inadequate if it fails to receive information about its ineffectiveness, through questions, complaints, or work refusals, and has no ability to be amended. The potential hazard of COVID-19 necessarily requires employers to be focused on rigorous enforcement of the COVID-19 program, only if it is adequately established, communicated and well known to workers. Therefore, to be truly effective, it must truly become a dynamic, managed system.

All of the above may seem daunting to non-OHS professionals; but it is the stock and trade of OHS professionals, including those with a CRSP accreditation. Understanding that COVID-19 is a workplace hazard that can be managed by the above mentioned 12 Step process, is an effective means of calming people's concerns, alleviating anxiety, and reducing fear. A managed systems approach to the workplace hazard of COVID-19, like all workplace hazards, will greatly reduce the risk of transmission, infection and adverse health outcomes for workers, customers and clients.

Conclusion

As a final thought and recommendation, remember the two goals that I set out in Step 2 in your preparation and execution of your reopening the workplace. Number one, optimize worker and public health and safety; number two, achieve maximum business recovery without compromising goal one.

That guidance will stand every CEO, planning task force, and employer in good stead when evaluated in the light of OHS law, legal compliance, best practices, and establishing a due diligence defence.


 


 

[1]  The term "essential business/workplace" has been used to identify those businesses, workplaces, organizations, and activities that have not been the subject of a governmental order to cease, cease and stop operations during the COVID-19 pandemic. 

[2]  Tanu Singhal, "A Review of Coronavirus Disease-2019" (2020) 87:4 Indian J Pediatr 281".

[3]  W Guan et al, "Clinical Characteristics of Coronavirus Disease 2019 in China" (2020) 382:18 N Engl J Med 1708".

[4]  World Health Organization, "Q&A on Coronaviruses (COVID-19)" (2020).

[5]  The CRSP® certification is a widely accepted form of recognition by industry and government in Canada.

[6]  Emergency Management and Civil Protection Act, R.S.O. 1990, c E.9

[7]  Health Protection and Promotion Act, R.S.O., 1990, c. H-7

[8]  "This may vary under different conditions such as surface type, relative temperature or humidity of the environment. The virus has been detectable up to four hours on copper, up to 24 hours on cardboard and up to two to three days on plastic and stainless steel", . van Doremalen N, Bushmaker T, Morris DH. et al. Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1. TheNew England Journal of Medicine.

[9]  Criminal Code, R.S.C., 1985, c. C-46, section 219(1)

[10] Canadian Health & Safety Law. Thomson Reuters, annual updated loose leaf service, Norm Keith, B.A., J.D., LL.M., CRSP


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