Labour and Employment Law Blog

This is the second in a two part series on ‘Returning the Workplace to Safe Operation’. This part deals with the renewed significance of existing OH&S requirements in the context of COVID-19. Before considering these OH&S requirements, we will first provide an update on Part 1 of this two part series issued on May 14, 2020.

Part 1: Updates on the requirement for a Safe Operating Plan (SOP)

On May 14, 2020, B.C.’s Provincial Health Officer issued a Public Health Order entitled Workplace COVID-19 Safety Plans. The May 14, 2020 Public Health Order references the general duty of employers to ensure the safety of workers and the workplace under section 21 of the Workers Compensation Act and orders that employers:

• Post a copy of their COVID-19 safety plan on their website (if they have one), and at the workplace so that it is readily available for review by workers, other persons who may attend at the workplace to provide services and members of the public; and
• Provide a copy of their COVID-19 safety plan to a health officer or a WorkSafeBC officer, on request.

Failure to comply with the May 14, 2020 Public Health Order could result in enforcement action.

Also on May 14, 2020, WorkSafeBC posted a number of new industry specific guidelines for industries returning to operation as part of Phase 2 of the provincial Restart Plan. These include guidelines for arts and cultural facilities, health professionals, in-person counselling, education (K-12), offices, parks, personal services, real estate, restaurants, cafés and pubs, and retail. These new industry specific guidelines are available here. As stated in Part 1 of our blog post, employers should ensure that their safe operation plan (SOP) is consistent with the appropriate industry specific guideline.

Part 2: Existing OH&S Requirements with a Renewed Importance

While the primary focus of reopening your workplace will undoubtedly be new safety measures to address the spread of COVID-19, existing occupational health and safety requirements should not be neglected. In the COVID-19 context, the following existing requirements have taken on a renewed importance in ensuring a safe workplace:

1. Joint Health & Safety Committee or Health and Safety Representative

An effective joint health & safety committee or health and safety representative is critical given their role as conduit for bringing worker safety concerns to the employer. As part of its inspections of workplaces that remained open during Phase 1 of the COVID-19 pandemic, WorkSafeBC sought assurances from employers that their joint health & safety committee or health and safety representative were operating effectively. WorkSafeBC has provided the following list of suggested actions that employers should be taking to ensure these bodies are effective in the fight against COVID-19 at the workplace:

• Ensure there is a mechanism in place where workers can raise any concerns about the risk of COVID-19 exposure at the workplace to the joint committee or worker representative.
• Have committee members participate in a walk-through assessment of the work process(es) to identify potential areas of increased risk and priority action.
• Ensure that the joint committee or worker representative is involved in the development of control plans for different job tasks.
• Involve the joint committee in promoting approved social distancing measures.
• Have the joint committee provide feedback on the effectiveness of control measures implemented.

2. First Aid

Employers are responsible for first aid in the workplace. This responsibility includes having a first aid policy, ensuring the workplace is equipped with the required first aid equipment, and where necessary, a first aid attendant. In many cases, physical distancing will not be possible when providing the appropriate first aid in response to a workplace injury or incident. Given the increased risk, WorkSafeBC has issued a resource for Occupational First Aid Attendants (OFAA) outlining protocols during the COVID-19 pandemic. Employers should review the resource, provide a copy to their workplace’s OFAA and together, revise first aid policies as necessary. OFAAs must understand the protocols discussed in the resource in order to protect themselves while attending to workers’ first aid needs. 

3. Unsafe Work Refusal Process

As businesses reopen, some workers will be reluctant to return to the workplace out of fear that they may contract COVID-19 while at work. In some cases, continuing to work from home may be an option that appeases both the worker and the employer. In other cases, the employer may not be able to or may not wish to accommodate the request.

Workers have the right to refuse unsafe work if they have reasonable cause to believe that performing the work would put themselves or someone else at risk. B.C.’s occupational health and safety legislation mandates a strict three-step process for dealing with unsafe work refusals:

1. The worker is to report the unsafe condition or procedure to a supervisor or employer. The employer must investigate the concern and report to the worker.
2. If the worker continues to be of the view that the work is unsafe, the employer must then undertake a formal investigation into the concern. The worker and a worker representative of the joint health and safety committee must observe the investigation into the concern.
3. If the worker’s concern and work refusal persists following the investigation, the worker and the employer must contact WorkSafeBC. A prevention officer will then investigate and assist in finding a resolution.

Employers must not discipline a worker for making an unsafe work refusal including by withholding pay or removing the worker’s shifts. Reassigning the worker to a new job task at no loss of pay would not generally be considered a disciplinary measure.

The best way for employers to protect themselves against unsafe work refusals and to defend against them once made, is to ensure that they are meeting all of the recent health and safety regulatory requirements. In the current context, this means ensuring that the employer has a compliant SOP, workers are knowledgeable about the plan, and the employer is verifying that the plan is adhered to at all times.

4. Safety Data Sheet and WHMIS 2015 Training

The increase in frequency of regular cleaning of workplace surfaces has for some workplaces meant the introduction of new cleaning products or an expansion of cleaning duties to workers who previously did not hold such duties. The risks associated with these changes although not obvious can be serious. The BC Centre for Disease Control recently announced that since the start of the COVID-19 outbreak in B.C., its Drug & Poison Information Centre has seen a 60% spike in calls related to exposures of household cleaners and disinfectants.

Before a worker can handle a hazardous product such as a new cleaning solution, employers must ensure they are familiar with the storage, handling and use requirements associated with the product. More specifically, section 5.4 of the Occupational Health and Safety Regulation prohibits workers from using a hazardous product unless all the applicable WHMIS requirements concerning labels, product identifiers, safety data sheets, and worker education and training are complied with.

Workplace injuries arising from the improper storage, handling or use of hazardous cleaning products are preventable. Given the increase in use, employers should take steps to ensure worker training on the storage, handling and use of these products is current and effective.

Returning your workplace to safe operation can be a source of stress for employers, but it does not have to be. Understanding the health and safety requirements and taking steps to comply with them, will ensure workers and visitors to your workplace feel safe. To assist employers in ensuring that they are prepared to safely re-open their workplaces, we have created the COVID-19 Health and Safety Checklist for B.C. Employers.

If you would like more information about your health and safety requirements, please contact Michelle Jones, Deborah Cushing, or another member of Lawson Lundell’s Labour, Employment & Human Rights Group.

Also, watch out for our next blog post where we will discuss recalling your employees to work and related issues including meeting the duty to accommodate and employee eligibility for protected leaves of absence.