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Welcome to post COVID-19 brave new world of work

Monday, June 08, 2020 @ 1:38 PM | By Sean O’Donnell

Sean O’Donnell %>
Sean O’Donnell
Plans have emerged for some industries and businesses to return to work, while many others await further information and the “green light” from their provincial governments. While both law and medical data are at the forefront of any decision, each individual business will have its own unique factors to consider, including whether they are a large or small business, whether they have the facility and capability to safely return some or all of their staff, and possibly whether returning to the workplace now, or at some later date in the future even makes sense — yes, some businesses are considering permanent work from home (WFH) practices!

Applicable to all businesses, however, will be the occupational health and safety (OH&S) legislation of their province. Each province is loosening restrictions, and providing varying levels of guidance, but any breach of a government order could expose an employer to fines, and potentially increased OH&S compliance risk.

The safest way to ensure employees do not contract or spread COVID-19 is to eliminate or reduce physical contact between employees. Employers should consider a staggered return to work (RTW) plan that complies with ongoing regulations and guidelines. But what if an employee refuses to return to work alleging they don’t feel safe, or what if an employee is especially vulnerable due to an underlying health condition? Can the employee refuse to come into work, or will they lose their job?

The answer will depend on the individual circumstances, however, all employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under OH&S legislation. Where an employee has a reason to believe there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety, the employee may be able to refuse to attend work/complete certain duties.

Will all employers be asking their employees to return to the workplace? “Big-tech” says, not so fast.

Working from home has brought myriad legal and practical considerations to the forefront, including logistical considerations, IT issues, expense reimbursement policies, confidentiality concerns, as well as the accountability and monitoring of employees. Businesses across Canada have grappled with implementing these new changes — learning  (or being forced) to change with the times. Now that these measures have been implemented for most businesses, employers are studying the effect of WFH for their businesses as a whole; asking themselves if during a post-COVID era, these WFH policies could remain for the indefinite future.  

Jack Dorsey, CEO of both Twitter and Square, recently informed his employees at both companies that they can continue working from home “forever.” Mark Zuckerberg, CEO of Facebook, also made his own announcement that his employees may also continue working from home, although with a potential pay cut. Global Workplace Analytics found that 77 per cent of the workforce say they want to continue to work from home, at least weekly when the pandemic is over.

Further studies show that 25 to 30 per cent of the workforce will be working from home multiple days a week by the end of 2021. And the list goes on: Google, Microsoft, Amazon and PayPal have all extended their WFH options. Which leads to our next point; with some of the largest companies turning their attention more towards remaining under current WFH measures, and less to returning to the workplace, these companies are in effect mitigating their risk by having less staff return to physical offices, thereby reducing the potential for transmission of COVID-19.

Of course, mitigating risk by not having employees return to the workplace is not a viable option for all industries. Accordingly, for those in manufacturing, brick and mortar retail, as well as restaurant and service industries, developing an RTW plan and executing it safely must remain a top priority. Employers will be tasked with getting their RTW plans right, and those negligent employers who fail to live up to their obligations under OH&S legislation could be visited upon by the Ministry of Labour (MOL), in Ontario.

It is almost guaranteed that we will soon see an increase in workplace investigations by the MOL. This will cause considerable delays, headaches and uncertainty during the return to the workplace. MOL inspectors are not necessarily trained to deal with these types of situations; therefore, employers can protect themselves and alleviate pressure on the MOL by ensuring they take reasonable measures warranted in the circumstances. This may include an analysis of which staff will be returning first, how the workplace can be arranged to ensure social distancing and what type of personal protective equipment (PPE) and/or sanitation policies will be required, amongst others.

Further, employees should not fear speaking out relative to their reasonable concerns regarding the health and safety of their workplace and their duties. Conversely, and following the opening of their businesses, employers ought to be careful not to withhold information relative to confirmed and/or suspected cases of COVID-19. This is something some businesses have been caught doing, and something we have witnessed firsthand through our practice, exposing the employer to claims of negligence and breaches of OH&S legislation.

While many businesses will not have the capability to mitigate risk by permanently providing WFH practices, those who do have the flexibility appear to be considering its long-term application. Whichever way businesses opt to mitigate risk, the next few months will be a critical point in time, not only for COVID-19, but also for unprecedented changes to the workplace landscape.

It’s a brave new world of work!

Sean O’Donnell is an advocate at SJOLegal with extensive experience in employment, human rights and civil litigation, having practised for Canada’s leading litigation firms in these areas, among myriad other areas of law. He was called to the bar in 2010. This article was written with the assistance of Carter G. Perks, student-at-law.

Photo credit / LightFieldStudios ISTOCKPHOTO.COM

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