Labour and Employment Law Blog

This is the first in a two part series on 'Returning the Workplace to Safe Operation. Part two will be posted on Tuesday, May 19. 

Part 1: New occupational health and safety requirements to ensure your workplace is safe from the spread or introduction of COVID-19

Canadian provinces and territories are now beginning the gradual process of reopening the economy in the wake of COVID-19. In B.C., on May 6, 2020, the Provincial Government announced its four phase Restart Plan. Phase 1 is already in effect where essential services have been permitted to continue to operate in consultation with WorkSafeBC and in compliance with public health orders from the Provincial Health Officer. In Phase 2, which begins mid-May, and the remaining two phases, more organizational sectors will be permitted to gradually reopen or expand operations, provided that they do so in compliance with enhanced protocols aligned with public health and safety guidelines.

This blog post will address employers’ health and safety obligations and, in particular, the steps employers should take prior to reopening their workplaces, and then going forward to ensure compliance with WorkSafeBC guidance and directives and public health orders. Subsequent blog posts will address other employment issues related to reopening the workplace including recalling your employees and dealing with refusals to work.

Employers’ Duty to Provide a Safe Workplace

Employers have a general duty under section 21[1] of B.C.’s Workers Compensation Act (WCA) to ensure the health and safety of workers and other parties at their workplace. As part of this duty, employers must reduce the risk of known hazards in the workplace as much as reasonably practical. The threat of contracting COVID-19 at the workplace is a novel workplace hazard.

Before returning a workplace to safe operation, employers must ensure that their business’ operation are compliant with provincial health orders, guidance provided by the BC Centre for Disease Control, and guidelines (both general and industry specific) issued by WorkSafeBC. Employer should consider whether industry specific organizations have produced any further guidance documents regarding what steps their specific industry is taking to reduce exposure to COVID-19 in the workplace. While such documents generally are not binding, they nonetheless inform the industry standard. Employers that do not adhere to these requirements risk breaching their duty under section 21 of the WCA and could face stop work orders, fines, penalties, and charges from WorkSafeBC.

Decision If and When to Open Your Workplace Safely

The decision of whether or not to reopen the workplace ultimately rests with the employer. However, the timing of the return depends in part on the type of business you carry on. B.C. is currently in Phase 1 of the Restart Plan. Phase 2 is expected to commence Tuesday, May 19 and will include the permitted re-opening under enhanced protocols of more non-essential businesses including the retail sector, offices, restaurants, bars and pubs, hair salons and other personal service establishments, museums, art galleries and libraries. If transmission rates remain low, Phase 3 will take place between June and September and will include hotels and resorts, the film industry, select entertainment, post-secondary education with some in class learning in September, and K-12 education with a full return in September. The timing of Phase 4 is currently unknown as it is conditional on at least one of: wide vaccination; community immunity; or broad successful treatments. Phase 4 will permit activities requiring large gatherings such as conventions, concerts, or live audience professional sports, as well allowing international tourism.

Employers must develop and implement a Safe Operation Plan (SOP) prior to returning their workplace to safe operation. WorkSafeBC has developed minimum requirements for SOPs and guidance documents (both general and industry specific) to assist employers in understanding how to safely reopen their business. Employers do not need WorkSafeBC approval of their SOP prior to a business reopening. Instead, WorkSafeBC will be conducting workplace inspections following reopening to review the steps taken by an employer to protect workers.

Developing your Safe Operation Plan

The purpose of an SOP is to reduce workers’ risk to exposure of COVID-19 at the workplace. Given this, employers are encouraged to involve their workers in the development of the workplace’s SOP. This can be done through direct communication with individual workers, or alternatively, through the workplace’s joint health and safety committee or health and safety representative. Ensuring working input in the SOP will help ensure buy-in from workers and confidence in their return to work.

At minimum, an employer’s SOP must address how:

• The workplace will be organized and arranged in light of social distancing requirements;
• Specific work tasks and activities will be carried out in a manner that reduces the risk of COVID-19 in the workplace;
• Cleaning and sanitization of the workplace will be carried out; and
• Changes in operation and precautions will be communicated to everyone at the workplace, including customers.

WorkSafeBC has developed a six-step process to help guide employers in developing a compliant SOP and ensuring its ongoing effectiveness following the reopening of the workplace:

1. Assessing the risk at your workplace

The first step is to assess the risk at your workplace. The focus of the analysis should be to identify places and work tasks in the workplace where the risk of transmission is introduced. As COVID-19 spreads through droplets from an infected person or from touching a contaminated surface, employers should concentrate on places and work tasks, which involve coming in close contact with other individuals and frequently touched surfaces. WorkSafeBC encourages employers to consider the following questions in assessing the risk at their workplace:

• Where do people congregate, such as break rooms, production lines, or meeting rooms?
• What job tasks or processes require workers to come into close proximity with one another or members of the public?
• What materials are exchanged such as money, credit cards, and paperwork?
• What tools, machinery, and equipment do people come into contact with in the course of their work?
• What surfaces are touched often, such as doorknobs, elevator buttons, light switches, equipment, and shared tools?

Once a list of places and tasks presenting a risk for contracting COVID-19 in the workplace has been developed, the employer can then move on to implementing measures to reduce the risk.

2. Implement measures to reduce the risk

This step focuses on identifying control measures to reduce the risk of transmission. In selecting appropriate controls, employers are reminded of the hierarchy of controls which places priority on controls in the following order: engineering controls (physical distancing and physical barriers), administrative controls (policies and procedures), and Personal Protective Equipment (PPE). Below is a list of controls that employers are encouraged to consider for inclusion, where appropriate, in their SOP.

Employers should also consider any industry specific guidance on controls provided by WorkSafeBC. At present, WorkSafeBC has developed industry specific guidance for agriculture, construction, forestry, health care, hospitality, manufacturing, municipalities, retail, small business and transportation. WorkSafeBC is currently working with a number of industry-based organizations to develop guidance for other industries that are preparing to open in Phase 2 and 3. This focused guidance will provide a baseline for best practices on an industry-by-industry basis and will be critical in any employer arguing they were duly diligent in preventing the spread of COVID-19 at their workplace.

Physical Distancing	Reduce the number of persons in the workplace Work-from-home schedules Reschedule some work tasks Restrict access to floors and workspaces through employee key cards Maintain a distance of two metres between workers Revise work schedules Re-organize workspaces and floor plans Use aids for work that would normally be done by 2+ persons. Use technology to minimize interactions Implement reminders of the need for two meters of space Signage Floor markers Control the number of persons in an area of the workplace Impose occupancy limits Close areas that are not critical for work (e.g. lunch rooms, change rooms, in-house gyms) Control places within the workplace where workers may have to pass another person in close proximity Limit elevator use to 1-2 people Designate one door as the entrance and another as the exit Directional arrows Signage Limit non-essential work activities that present a risk Travel Off site engagements to other workplaces Social events
Where physical distancing cannot be maintained	Install partitions or plexiglass barriers Consider the use of masks, visors, gloves and other PPE with the understanding that these have limitations
Cleaning and Hygiene	Ensure adequate and easily accessible hand-washing facilities Develop policies around when workers must wash their hands Implement a cleaning protocol for all common areas and surfaces Remove any unnecessary tools, equipment or common items that may elevate the risk of transmission

 

3. Revise or develop policies and procedures to keep illness out of the workplace

Employers should ensure they have the necessary policies to keep illness out of the workplace, including:

• A policy consistent with the public health officer and BC Centre for Disease Control’s guidance around self-isolation for:
  • Individuals with COVID-19 symptoms,
  • Individuals under direction by public health authorities (i.e. those who have tested positive for COVID-19 or have been in close proximity to someone that is), or
  • Individuals having recently travelled internationally.
• A policy prohibiting or limiting visitors to the workplace.
• A plan for what to do if a worker begins to feel ill at the workplace including who they should notify and how they should travel home from the workplace.
• Procedures for workers that are working alone to ensure their safety.
• Procedures for workers that are working from home to ensure their safety.

4. Develop communication plans and training

An essential part of managing the risk of COVID-19 in the workplace is ensuring adequate communication and training. Employers have a duty to ensure that everyone entering the workplace (including contractors, visitors, and customers) knows how to keep themselves safe while at your workplace. Below are some of the steps employers should take to meet this duty:

• Ensure all workers are trained on the measures implemented to control the risk of COVID-19 at the workplace.
• Ensure adequate supervision policies to verify that workers are following these policies and procedures.
• Ensure all workers understand the importance of adhering to sickness policies and not coming into work when ill.
• Post signage inside the workplace to communicate COVID-19 controls such as occupancy limits, handwashing requirements and two meters distance.
• Post signage at the workplace entrance advising who is restricted from entering (including anyone with COVID-19 symptoms).

5. Monitor your workplace and update your plans as needed

The steps outlined above provide employers the foundation for building an effective SOP for their workplace. Actual effectiveness will depend on compliance with the SOP, ensuring it is current and making additions or revisions to address gaps in controls. Employers must monitor their workplace and update the SOP as needed. Frequent reviews of controls, policies, and procedures are recommended and should be informed by worker feedback through the involvement of the joint health and safety committee or health and safety representative. Further, employers must respond to any safety concerns in a prompt and effective manner.

6. Assess and address risks from resuming operations

This last step is less concerned with the risk of COVID-19, and more concerned with whether or not the shutdown caused by Phase 1 of B.C.’s Restart Plan, and the need to “restart” work, may involve risk. WorkSafeBC has provided the following list of questions to help employers identify potential general safety risks from resuming operations following a lengthy shut down:

• Have you had any staff turnover, or are workers being required to change or adapt job roles, or to use new equipment?
• Will workers need time or training to refresh their skills after having been out of the workplace?
• Have you changed anything about the way you operate, such as the equipment you use or the products you create?
• Are there any processes required for start-up that might introduce risks?

As employers develop and implement their SOP, the landscape of their workplace and the business they conduct will undoubtedly look different than it did before the pandemic started. Adapting to the changes may take some time, but if employers follow the appropriate process and implement well-informed, comprehensive and effective controls, their workplaces and workers will be safer for it. Having an effective SOP will not only protect workers and others that visit your workplace, but it will shield the employer from fines, penalties and charges for failing to meet its duty to ensure the safety of the workplace and workers under section 21 of the WCA.

If you would like more information about SOP and or would like a compliance review of your SOP, please contact Michelle Jones, Deborah Cushing, or another member of Lawson Lundell’s Occupational Health and Safety team.

Also, watch out for our next blog post on Returning your Workplace to Safe Operation where we discuss existing occupational health and safety requirements that have been given a renewed importance in the COVID-19 pandemic.

^{[1] Formerly section 115 of the WCA.}