Requirements for the Safe Re-Opening of Workplaces

By Jennifer Kwok

The BC Government's recent announcement of its Restart Plan - aimed at mapping out the gradual re-opening of the economy and easing of restrictions - has been eagerly anticipated by non-essential BC businesses. Accordingly, many employers may be considering re-opening and/or returning some of their employees to the physical workplace.

Prior to the actual re-opening of any particular business, employers must ensure that they are able to comply with all applicable governmental orders, public health directions, and industry-specific occupational health and safety laws. Businesses and organizations that are not covered by a provincial health order may re-open or continue to operate so long as they adopt and implement sector specific safety protocols as these are developed and issued by WorkSafeBC. Protocols relating to the business sectors identified for reopening in Phase 2 of BC's Restart Plan are currently being developed by WorkSafeBC in consultation with industry stakeholders and are expected to be announced shortly.

The Employer's Duty to Provide a Safe and Healthy Workplace

All employers have a legal obligation to ensure the safety, health and well-being of all employees in the workplace. That was the law before COVID-19, and it remains the same during this pandemic.

A new development is that WorkSafeBC is now requiring all operating businesses to develop a written Safety Plan outlining how it is reducing the risk of exposure to COVID-19. In this article, we outline WorkSafeBC's Safety Plan requirements and some other practical considerations employers will need to turn their minds to when determining whether, when, and how they might re-open for operations. A measured, well-considered and purposeful Safety Plan will go a long way in reassuring employees that their health and safety is the employer's top priority. We note that consultation with frontline workers, supervisors, and joint health and safety committees and/or worker representatives under a collective agreement might be required with respect to the written Safety Plan.

Safety Plan Requirements

The employer's Safety Plan must demonstrate that the employer has assessed the risks of COVID-19 transmission in the workplace and taken measures to reduce these risks. While employers are not required to submit these Safety Plans to WorkSafeBC for review or approval, employers will be required to provide their Safety Plan to a WorkSafeBC health officer if requested.

Further, the Provincial Health Officer issued an order on May 14, 2020 that a copy of the Safety Plan must be posted on an employer's 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/or members of the public. Currently, this Order does not have an expiration date.

1. Assess the risk at the workplace

Before returning workers to the office, employers should consider whether all workers need to return to the workplace. Can some work from home? Do you have workers in higher-risk categories (such as being immuno-compromised, 65 years or older, suffering from certain medical conditions such as diabetes, asthma, serious heart conditions, or lung disease)? Do you have workers whose only mode of transportation to work is public transportation? Consider whether it is necessary for these employees to be in the office, or how you can mitigate risk of transmission to these particularly vulnerable individuals.

Employers should do a walk-through of their workplace for the purpose of identifying conditions or tasks that may increase the risk of exposure to workers to COVID-19. Certainly, obtain the feedback and input of workers as to where potential exposure may occur and how they think exposure can be controlled.

With respect to the creation of the Safety Plan, employers are required to identify places where the risk of transmission is introduced. If it has been determined that workers cannot perform their duties anywhere but on the employer's premises, consider asking the following questions relating to how minimizing risk of transmission through coughing or sneezing, or from touching a contaminated surface before touching the face might occur:

  • Where do people congregate or what spaces are shared, such as break rooms, boardrooms, and kitchens?
  • 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 in the course of operations?
  • What tools, machinery, and equipment do people come into contact with in the course of their work?
  • What surfaces are touched often or shared, such as doorknobs, elevator buttons, light switches, equipment, tools, kitchen appliances, etc.?

2. Implement measures to reduce the risk

Depending on the answers to the questions posed above, employers are required to select and put measures in place to minimize the risk of transmission. For example, does the workspace need to be reorganized? Can workers' shifts be staggered to reduce the number of people at the workplace at one time? Should one-directional hallways be implemented? Should plexiglass shields be installed? If the recommended 6 feet of distancing is not possible, will workers and the public be required to wear masks?

The Safety Plan should indicate the existence and implementation of controls that will eliminate or minimize the risk of exposure.

Additionally, employers must ensure the following:

  • that there are adequate cleaning and hand-washing facilities on site for all workers;
  • that there are protocols and policies around when workers must wash their hands, including upon arriving for work, before and after breaks, after handling cash or other materials, before and after handling common tools and equipment;
  • that there are cleaning protocols for all common areas and surfaces, including washrooms, equipment, tools, common tables, desks, light switches, and door handles;
  • that there is adequate training and materials for those engaged in cleaning; and
  • that there is the removal of any unnecessary tools or equipment that may elevate the risk of transmission, including items like coffee makers and shared utensils and plates.

It is also important for employers to consider how it can check and track whether the above protocols are being followed.

3. Develop policies

As stated above, employers should develop or revise their policies in connection with their management of the workplace, including policies around who can be at the workplace, how to address illness that arises at the workplace, and how workers can be kept safe in adjusted working conditions. For example, revise and adapt your policies to include the following information and procedures:

  • who workers should notify and how they will travel from the workplace to their home if they start to feel ill at work;
  • how the employer is ensuring workers are safe if workers will be working alone to reduce the risk of transmission; and
  • how the employer is ensuring workers are safe if workers will be working from home.

Importantly, it is imperative for all employers and employees to remember that the guidelines issued by the provincial health office and the BC CDC in connection with self-isolation must be complied with. WorkSafeBC requires the following guidance around self-isolation to be reflected in workplace policies:

  • anyone with symptoms of COVID-19 including fever, chills, cough, shortness of breath, sore throat and painful swallowing, must self-isolate at home for a minimum of 10 days;
  • anyone under the direction of the provincial health officer to self-isolate must follow those instructions; and
  • anyone who has arrived from outside of Canada, or who is a contact of a confirmed COVID-19 case, must self-isolate for 14 days and monitor for symptoms.

4. Develop communication plans and training

Employers must ensure that everyone entering the workplace, including workers from other businesses, know how to keep themselves safe while in the workplace. Communication of the employer's COVID-19 measures, protocols and Safety Plan prior to the employees' return to work will assist in ensuring everyone is on the same page and understands the importance of following the protocols and procedures. To that end:

  • Be sure everyone is trained on the measures that have been put in place and the policies around staying home when sick.
  • Consider posting signage, including occupancy limits and effective hygiene practices around the workplace. Signage should also be posted at the main entrance indicating who is restricted from entering the premises (including visitors and workers with symptoms).
  • Ensure workers are adequately supervised to ensure they know what to do.

5. Monitor your workplace and update your plans as needed

As we are all aware, this is a novel and ever-evolving situation. COVID-19 measures and protocols may need to be revised and adapted following the re-opening of a business. If something is not working, update those practices and procedures and involve employees in this process. Ensuring that workers can raise safety concerns is very important, and working with any joint health and safety committees (required in workplaces of more than 20 employees) will be key to ensuring a diligent, committed and safe workforce.

6. Assess and address risks from resuming operations

Lastly, if your workplace has not been operating, there may be risks arising from restarting your business that you need to manage. Consider the following:

  • Have you had any staff turnover, or are workers being required to change or adapt job roles, or to use new equipment? Consider whether training or new employee orientation is required and how this will be done safely.
  • 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? Consider the impact of restarting machinery, tools and equipment, or clearing systems and lines of product that may have been left when your business was closed.

Having a clear plan in place that is communicated to all employees prior to re-opening demonstrates a thoughtful and measured approach that the health and safety of employees is important to the employer. Certainly though, whenever employers make changes to the workplace, it is important for them to review existing employment agreements, workplace policies, and if applicable, their collective agreements, to determine how these changes affect the terms and conditions of the workers' employment.

We encourage any clients with questions about managing the return to operations to reach out to us well in advance of their anticipated return. Our lawyers remain available to advise on all workplace law matters experienced by you or your business as this situation continues to evolve. Please do not hesitate to contact us if we can be of assistance to you during this challenging time.