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What employers will face as economy reopens

Thursday, June 04, 2020 @ 2:35 PM | By Dan Palayew

Dan Palayew %>
Dan Palayew
As the local economy is slowly reopening, Canadian employers face both legal and logistical challenges as they come out of COVID-19. Unchartered waters lie ahead as they face health and safety, privacy and human rights issues.

In order to get ahead of these upcoming challenges, it is important for employers to plan ahead and tackle potential issues out of the gate. Although the issues are wide ranging, the approach should be the same — to be diligent in planning.

As employers manage the migration back toward the traditional workplace, remote working may remain something employers favour for certain types of employees, at least for a certain period of time, or it may be demanded by employees who have become accustomed to this new way of working. Aside from having to adjust HR and recruitment strategies in the new post-lockdown era, employers will want to ensure that they have appropriate remote working policies in place, and that existing policies are updated to give the employer sufficient control over the employee’s work and productivity and to protect the employer’s proprietary and confidential information and computer network.

Given the high level of stress that returning (and refusing) employees will have experienced over the course of the shutdown, and will continue to experience, employers can expect an increase of mental health issues affecting its workforce. These issues may include post-traumatic stress disorder and phobias, including intensified germ phobias. How will employers be able or required to accommodate such issues?

Until effective vaccines and/or therapies for COVID-19 become available, employers will need to continue taking all reasonable steps to ensure that their workplaces are compliant with public health guidelines and requirements as well as their obligations to protect the health and safety of employees. Employers will need to remain current and proactively assess their workplaces and make modifications in planning for the return of their employees. This will affect physical workspaces and require that employees are properly informed, equipped and monitored to ensure compliance.

Employers should already be examining all aspects of their workplaces (ergonomics, hygiene, health, legal, etc.) and putting together a return to work plan in consultation with appropriate professionals.

For each employer, it will be a case-by-case analysis and the crafted return to work plan and policy should take into account several factors, including reporting policy violations, business needs, type of work location, among others.

Many employers want to know if they can implement screening tests, including taking employees’ temperature, before allowing them to enter the work premises, as is already being done in certain jurisdictions and certain industries locally. Furthermore, as other forms of testing (e.g.serological and antibody testing) become commercially available and more reliable, employers may have an interest in mandating such testing to minimize the risks of spreading the virus.

Such testing and how it may be carried out (if at all) raise a variety of privacy and human rights issues, requiring careful examination and a balancing of the rights and obligations of both employer and employees. Such testing is unlikely to be a complete solution and will therefore need to be coupled with questionnaires and screening protocols as part of a broader process to be established in consultation with health professionals and legal counsel: Will employees need to “consent” to such testing? What if they refuse? Will employees be entitled to pay while waiting on site to be tested? Will employees be entitled to pay if sent home? These are all questions that will need to be addressed.

Employees will inevitably not all adhere to the required workplace hygiene practices (e.g. social distancing, regular hand-washing, coughing into your elbow, etc.) with the necessary rigour, and those who do may not want to share a workplace with them. Similarly, some employees will report and possibly refuse, whether justified or not, to work around employees who have a cough or who are seen partaking in social events on social media, thus requiring timely and appropriate employer interventions.

Dan Palayew is a partner at BLG who advises employers on a wide range of labour and employment issues. He also acts as an investigator and mediator in complex workplace disputes.

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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