Return to work includes strict occupational health and safety requirements with personal liability

As Canadian workers begin to return to their workplaces, supervisors and managers of reopening businesses will be personally liable to strict legal requirements and duties which carry charges and fines if violated.

“This is not just an exercise in getting people back to work. It's an exercise in complying with some very strict legal obligations, particularly in Ontario,” says Adrian Miedema, a partner in the Toronto employment group of Dentons Canada LLP. “The people who are responsible for the particular place of business need to be aware of those obligations.”

Each province has its own emergency legislation in effect in response to the COVID-19 pandemic. In emergency legislation across the country, there are special provisions that impose obligations on employers who are bringing their employees back to work.

“And these can be actually very broad obligations,” says Miedema.

In Ontario, the Emergency Management and Civil Protection Act puts broad obligations on the “person responsible for a place of business.” The Act requires the person responsible to ensure the business complies with the Occupational Health and Safety Act as well as any advice, recommendations or instructions from public health officials, including those concerning physical distancing, cleaning or disinfecting.

“If they breach those obligations, they can be personally charged and fined,” says Miedema. “I think that's an important point that people need to keep in mind.”

“We've noticed that this hasn't gotten a whole lot of discussion. If I was a person who was, let's say, a supervisor or a store manager at a retail store that was reopening, I'd want to know that I've got these personal legal duties that could come with pretty serious charges and fines if I violate them.”

Each province also has its own Occupational Health and Safety Act, with a general duty clause, which says employers must take all precautions reasonable in the circumstances to protect workers, and a breach of those obligations can result in fines or charges under the OHS legislation, says Miedema.

Miedema’s practice involves advising employers on occupational health and safety compliance and includes defending companies that have been charged with safety offences after a workplace accident. To determine how to best implement a return-to-work plan, he advises employers to consult widely and notes that many are speaking with public health and infectious disease experts as well as their employees. Employers are also making use of their joint health and safety committees and setting up reopening committees to review the process and necessary safeguards.

“It's one thing to have a plan that is actually safe. But it's another thing to be able to persuade your employees that they're going to be safe when they come in,” he says.

Since the pandemic emerged, Miedema has been fielding questions on active screening for workplaces, including temperature checks. Some companies are using an app on which they answer a daily questionnaire about possible symptoms or social contact with an infected person. Upon completion, their screen will show a “yes” or “no,” which they then show to their supervisor every time they come to work.

Companies operating out of skyscrapers are asking what they can do about elevators.

“That's a really significant pinch point, so to speak… where buildings are setting limits on the number of people in elevators. If we bring all of our employees back, given the limit of two or three or four people in an elevator at any given time, the line-up for the elevators is going to be way too long and it's not going to be feasible. So that's a significant issue that building owners and tenants are trying to work out,” says Miedema.

Public transit will be another major concern for occupational health and safety, he says. Cramming tens of thousands of commuters on the subway every morning will seem like a vector for viral spread and employees may take issue with being forced to take on that risk to get to work.

“That's going to be an issue that a lot of employers are going to face; … how to assuage employee’s concerns with respect to their transit.”

Aside from workplace health and safety issues, Miedema expects the return to work to bring a lot of family-status accommodation requests from employees who want to continue working from home.

“I think we're going to start to hear a lot more employees who are coming forward and saying, ‘You know, my kids are at home, their day-care or school is still closed. I don't have anyone to care for them. I can't come to the office, period.”

Miedema will be speaking at Canadian Lawyer’s upcoming webinar: COVID-19 and return to work: critical OHS and employment law considerations, which will take place June 10, at 12 pm EST.