Episode 4: Re-opening your business – Key considerations in returning your employees to work

( Disponible en anglais seulement )

25 mai 2020 | Inna Koldorf, Stephen M. Torscher, Claudia Desjardins Bélisle, Katie Comley

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Katie: Hello, and welcome to another edition of Morning Commute with Miller Thomson. You are listening to Episode 4. I am your host today, Katie Comley, an associate with Vancouver’s Labour and Employment Group, and I am joined today by three of my colleagues from across the country. Inna Koldorf is a partner in Miller Thomson’s Vaughan office with previous experience representing employees and unions. Stephen Torscher is a partner in Miller Thomson’s Calgary office with a broad range of litigation experience in addition to his labour and employment practice. And Claudia Desjardins Bélisle is a partner in Miller Thomson’s Montréal office where her labour and employment practice is complemented by an administrative law practice.

Our topic today is Re-Opening Your Business: Key Considerations in Returning Your Employees to Work. This podcast follows a webinar that was recorded earlier and will be made available through Miller Thomson’s COVID-19 resource hub that can be found at the bottom of our firm’s home page. We invite everyone to visit millerthomson.com to view the full webinar and our discussion of each topic.

Katie: Now this podcast is not meant to be a re-do of our webinar but rather to give you the high level takeaways from the webinar, a little bit of a teaser trailer if you will for the longer webinar for those of you who are interested in viewing it. So first of all I am going to go to Inna who, during our webinar, spoke about the topic of preparing the physical workspace and updating policies for employees’ return to work. And so Inna, I will put it to you: what is one takeaway from your presentation that you would like to share with our listeners today?

Inna: Thank you, Katie. The one takeaway for our listeners in Ontario, that the Ministry of Labour has improved its random audits of workplaces to ensure that the Occupational Health and Safety Act and the advice and recommendations of public health officials are being followed. We understand from clients that the inspectors are expecting to be shown COVID-related policies and indication that employees have been properly trained on the policies. In some cases the inspectors met one-on-one with employees to inquire whether the employees are aware of the policies, whether they have been trained and whether the employer is imposing the policies. We have also heard that inspectors have shut down some workplaces in Ontario where the workplaces were not compliant with health and safety guidelines. So it is important that policies and procedures are updated and in place before employees return to work after the shutdown.

We recommend getting your organization’s policies and procedures in order. The right time for that is right now, and what we recommend employers look at are issues such as social distancing; staggered shifts; have a quarantine policy with respect to employees who are ill, have travelled, have shown symptoms or have been in contact with somebody who has shown symptoms; have procedures for sanitation of transmission points, equipment cleaning and deep cleaning procedures; have procedures for hand washing, use of PPEs and if you have employees working from home have a remote working policy as well. Some provinces require return-to-work plans and to have those posted. Have that as well in case the inspector would like to see your return-to-work plan. And you might also think about drafting a pandemic or crisis policy at this point to address the same circumstances if they ever happen again or if we have a second wave.

With all the policies that you have in the workplace make sure that employees are trained on them, that they sign off on an acknowledgement which you can put in their employee file and that as an employer you enforce the policies consistently.

Katie: Great, thanks Inna. It’s a lot for employers to consider and a lot for them to navigate so we really appreciate you sharing that high level takeaway.

Next I am going to throw it to Stephen who is a partner at our Calgary office. Stephen is going to talk about accommodating employees’ requests not to return to work. So Stephen, what is the one takeaway from your topic that you would like to share with our listeners this morning?

Stephen: Thanks, Katie. I think the one takeaway that I would like to share today is that employers need to be mindful of their human rights obligations that continue to exist during COVID-19. As businesses start to relaunch and employees are recalled to work there may be a number of employees that we see suggest that they are not able to come back to work for various reasons. If the reason has something to do with childcare obligations or, you know, caring for an elderly parent or someone else that is under their care such as that, or if there is employees who have some concerns about the availability of public transit and their ability to get to work, that may engage with some of the employer’s obligations under the human rights legislation in their particular province. In Alberta, for example, there is a family status protected ground that would come into effect in these circumstances and so employers need to be wary that their obligations under the human rights legislation may be engaged and they may have to accommodate their employees to the point of undue hardship. Getting to that point, though, requires a bit of a dialogue between the employee and the employer. There needs to be a discussion about the particular needs of the employee and the policies and procedures that are in place of the employer. Neither party is entitled to their preferred solution so there needs to be some give and take on both sides. We always recommend that these kinds of discussions are well-documented on the employer’s side for sure because that can help, you know, protect the employer later on if there is a disagreement about the adequacy of those accommodations that have been put in place and a complaint may be filed later on.

As we see businesses return to a new normal they should be encouraged to be flexible in how they deal with some of these employees. Working from home options should probably be explored going forward for the next little while even if the economy begins to re-open and some of these restrictions are lifted, but that is going to be an ongoing concern as we navigate these waters with COVID-19 and prepare to return businesses to a new normal. Thanks Katie.

Katie: Thanks so much, Stephen. I think the key thing to take away from what you have said is that it is really important to communicate with your employees, so you can make sure that you are aware of what is going on with your employees’ circumstances; this is really important as we go forward into this “new normal”. Thanks so much.

Finally, I am going to turn things over to Claudia who spoke during our webinar about how to deal with work refusals. So Claudia, what is the one takeaway from your topic that you would like to share with our listeners this morning?

Claudia: Thanks, Katie. So work refusal can be a little bit tricky and so what I would recommend employers keep in mind is that at the end of this whole pandemic, at the end of the COVID because I do believe we will get to the end of it at some point, they will continue working with the same group of employees and they want to make sure that employer/employee relationships are also well-preserved. So when you are facing a work refusal just make sure that you are assessing correctly said work refusal. See if there is anything that you can propose to the employee in discussing with the employee to make sure that the employee feels like they can come back to work, and also be prepared. Preparation is key, I believe, with this particular scenario of work refusal because you want to make sure that you have already anticipated most of the potential outcomes of an employee refusing to come into work. And so prepare with your team a plan B, if I could say, to be able to analyze each and every individual request to refuse to come into work to see how as a company you want to position yourself. And so have this plan ready and be ready also to take decisions that may have an impact on your business and be ready to continue with your business with such decisions. So for example, if you have an employee who does not want to come back to work after all the effort, after having involved the CNESST probably or any other health and safety boards or commissions of other jurisdictions. Have a plan B in place to see how you are going to continue with your business if this employee, for example, resigns from their employment or if you terminate them for just and sufficient cause because right now it may be a little bit difficult to recruit. So keep that in mind and have a plan B prepared. Preparation is really key.

Katie: Great. Thank you so much, Claudia.

Finally, my topic during the webinar was practical tips on recalling employees back to work. The one takeaway that I would like to leave everyone with from my part of the presentation is that timing is really key. Whether you have unionized employees that are subject to a collective agreement, or non-unionized employees where you are dealing with individual employment agreements and your provincial employment standards legislation dictates how long a layoff can last for before it becomes a termination, keep those dates in mind when you are planning out how long it is going to take for you to make changes to your physical work space. Arrange training for your employees on all these new COVID-19 related policies and procedures, because you are going to want to factor in enough time to make sure that you can open your business safely and responsibly while also being mindful of not brushing up against the point at which a layoff then becomes a termination and you have no more time to work with. And so it is really key when you are coming up with your COVID-19 response plan for your business to look at those final dates that you need to be mindful of, and then work backwards when you are developing all the different aspects of your plan, of which there are many. And I would say, with my issue and the other issues that my colleagues have discussed, if you have any particular questions in relation to your business or the province in which you are operating, please do not hesitate to reach out to any one of our labour and employment colleagues across the country. We are very much looking forward to hearing your questions and concerns about re-opening your business, and very happy to help.

Thanks to everyone for sharing those excellent tips. On behalf of Inna, Stephen, Claudia and I, and our labour and employment colleagues from across the country, thanks for joining us today on Morning Commute.

As I mentioned earlier in the podcast, this podcast as well as the full webinar will be published on the COVID-19 resource hub which is located at millerthomson.com. The hub is continuously updated as new developments emerge during the pandemic and so we encourage you to bookmark the hub in your browser and check back on a regular basis, and be sure to follow Miller Thomson on Twitter or LinkedIn for all of the latest updates from our firm.
Tune in next time for Miller Thomson’s Morning Commute and thanks for listening.

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