As endless as these past few months have seemed, it was not so long ago that most workplaces had to abruptly wrestle with how to scale down and make sometimes drastic changes to the way that their work gets done in the face of the COVID-19 pandemic. While the pandemic is still very much ongoing, our society is in the midst of “relaunching” – loosening restrictions, reopening services and businesses, and planning for a hopeful migration of workers back to something resembling their normal positions and duties. But this requires very deliberate and careful planning so that appropriate management of the health issues continues in this relaunch, failing which health professionals agree that we are likely to see a serious rebound in cases and a need to potentially close business down again to some extent.

This means that workplaces in Alberta and throughout Canada are now faced with a new set of legal and practical considerations around how to actually plan and implement how they will get to this new normal in the face of some unique and largely unprecedented human resources and safety-related challenges. As this unfolds, many employers in one way or another will have employees, unions, government agencies and investigators, or all of the above scrutinizing and formally or informally challenging the plan that the employer made and implemented in this regard to keep the workplace functional and safe.

There are a variety of considerations that we feel most employers will need to take into account in this regard. With this in mind, we offer below some thoughts and recommendations on how employers should approach the planning and implementation of their “new normal” as people get back (or closer) to regular work.

Review Stage

• If you do not already have an individual or a committee dedicated to COVID-19-specific workplace safety, implementation of return to work and future work planning, you should establish one promptly. Under the leadership of these people, your organization must first take stock and compile information, risks and potential solutions that will inform your eventual plan, including factors noted below.
   
• What are your physical spaces, different work areas, and working groups? Does the set-up of the physical space or the workflow create any inherent vulnerability and how could that be adjusted? Depending on your size, you may need to break things down into a number of different physical spaces or work areas and approaches that have their own unique needs. People who work mostly alone in offices with doors will need completely different accommodations than people who work in close quarters or who share equipment.
   
• Undertake a detailed overview of employees (if any) who you already know are “high risk” and who need particular protections in place. Set up a plan for how you will communicate with them about their particular needs if they are to be in the workplace (if they cannot be in the workplace, then a different discussion ensues as to accommodations in that context).
   
• To the extent that it has not already been done during the “closing” period of the pandemic, review and identify how various people and work areas will be able to continue to work from home, as necessary. If you want or need people to work at home for the foreseeable future, or perhaps semi-permanently, have you considered whether a written work-from-home agreement or policy is necessary in order to account for some of the challenges and necessities of this new arrangement?
   
• Determine which people, physical spaces, and resources you need to keep the basic aspects of the business functioning. From there, identify different “scaled up” iterations where you operate at increasing percentage capacity up to 100%, and account for how aspects of your plan will need to change as that evolves.
   
• Consider and determine whether you want or need to set up any employee screening (temperature-taking, questionnaires, testing), the privacy and legal implications of that, how you will logistically accomplish the screening, and where/how you plan to store the information that is gained from it. Depending on the nature of your enterprise, these can be more trouble than they are worth both legally and practically, so they should be undertaken with care and professional advice.
   
• Identify how you are going to stay current on the ongoing and evolving obligations and situation surrounding the pandemic and your workplace, and who is going to be responsible for that.

Plan Development Stage

• Using all the information from the Review Stage, set up a plan and program that you will use to provide education (and potentially training, where necessary) to employees regarding how to keep themselves and others safe from COVID-19 transmission in the workplace. Use the many government and public health resources available in this regard, tailored to your workplace.
   
• Do not take a “one size fits all” approach. Account for a portion of your plan that is universal to all employees, plus other aspects that might be unique to certain employees/work groups.
   
• Identify supplies that you will need for your plan (basics like signage, hand sanitizer and/or disinfecting wipes, hand washing stations, facemasks, tissues, or more unique things like plastic barriers, floor markings, etc.) Plan how and when you will acquire these supplies on an ongoing basis.
   
• Identify the different types of non-employees that come into the workplace (deliveries, contractors, customers, etc.), determine measures applicable to them and how you will communicate and manage that, and dedicate a specific part of your plan to this.
   
• Review any applicable collective agreements and identify any aspects that are relevant to and may impact any aspect of the plan.
   
• Remember, the main purposes of the Plan are to ensure the health, safety and productivity of your workforce and to have specific documentation of how you have done that in the event that a complaint or dispute arises.

Implementation Stage

• Communicate your plan and expectations to employees and unions. Consider requiring employees to sign an acknowledgment.
   
• Coordinate with any in-house and/or 3^rd Party cleaning personnel for any adjusted cleaning that will be required. Increasing the frequency and intensity of cleaning is often advisable, especially with respect to “high risk” shared areas (bathrooms, door handles, etc.).
   
• Where employees are unable or refuse to return to work or to adhere to aspects of the plan, you need to determine whether they are doing so based on a protected ground, such as medical disability or family status due to needing to care for children or others. If that is the case, you will need to determine the validity of the issue and whether/how it could be accommodated. This often requires some nuanced legal and practical considerations that are very fact-specific. In the case of a reason related to caring for family members due to COVID-19 or due to school and child-care not being available, the employee may also access the temporary expanded Personal and Family Responsibility Leave on an unpaid basis.
   
• Where employees are refusing to return to work in accordance with the plan for reasons not properly related to a protected ground, communicate directly with them to understand the concerns and address them. Work refusals based on generalized things such as simply being unwilling until a vaccine is discovered, for example, are rarely going to be valid. If the employee is simply being unreasonable given the precautions and plan in place, discipline issues may arise, although you must be cognizant of workers’ rights to refuse work pursuant to OHS legislation and their ability to allege that the employer is engaging in retribution. Again, these situations will be very fact-specific, with variable legal and practical considerations.
   
• Where employees become ill due to COVID-19 and need to be away for that reason, they are entitled to 14 days of unpaid leave in Alberta, and you will also wish to coordinate your illness benefits which may offer additional pay or benefits in that regard. Ensure that you are receiving regular updates as to their status and maintain contact with them.
   
• Consider whether and to what extent an ill employee was in contact with co-workers, but be very cautious about whether or to what extent you disclose to anyone else that the person is ill, particularly if they have self-identified having COVID-19. Whether other employees should be informed is a delicate issue, and you should err on the side of non-disclosure until you can seek the appropriate advice. The public health authorities will also need to be involved in assessing whether and how other affected people may need to be contacted.

It is important to recognize that there is a significant likelihood that your COVID-19 Plan dealing with these various issues will need to be in place for an extended period of time, and that the coming months will include further iterations of “closing” and “opening” to varying extents, particularly if a vaccine is not discovered and/or herd immunity of the population is not achieved any time soon. Your Plan needs to be a “living document” that you use and adjust as circumstances require. Because so many aspects of this situation are completely novel for most businesses, there is a good chance that you will have some aspects of your plan that do not work exactly as you had expected, so it is important to identify those as they arise and adjust accordingly.

We will be providing further information releases dealing with some of the more specific matters likely to arise in implementing your plan, such as various ways to deal with different types of “work refusals” by employees. In the meantime, Field Law's Labour + Employment group is available to assist employers with any and all aspects of how to successfully manage these challenging issues.