Kootnekoff: Re-opening to a new normal

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice

Amid fears over corona virus and declarations of emergency, many employers moved away from physical workplaces, toward either requiring employees to work remotely from home, or allowing employees to take leaves of absence.

British Columbia’s state of emergency has been extended to June 9, 2020.

At the same time, the previously announced B.C. government’s “Restart Plan” is underway.

Organizations are presently considering whether, when and to what extent to re-open.

Re-opening a workplace is not as straightforward as simply instructing employees to return. Many considerations, legal and otherwise, are involved.

An employer’s reopening plan should be based on available facts relevant to the community and the workplace. It should of course comply with law. It should consider applicable guidance, some of which may be conflicting, and some of which may not be clear.

Employers must also consider their own policies and protocols that may impact re-opening decisions.

Large industrial employers will already be familiar with occupational health and safety hazard assessments and documentations requirements. Other employers may have no experience in this area.

Employers are expected to have a COVID-19 safety plan that assesses the risk of exposure at the workplace and implements measures to keep staff safe. An order of the provincial health officer states that employers are to develop a plan to ensure that the risk of transmission of corona virus at workplaces is minimized.

The Worker’s Compensation Board of B.C., WorksafeBC, has developed resources to assist employers, including a template COVID-19 Safety Plan. This plan must be posted at the worksite. The WCB states that among other things, it will ask employers about steps taken to protect their workers.

As part of a broad reopening plan, an employer may consider questions that include, and are not restricted to:

  • Has the Minster of Public Safety, the Public Health Officer or others issued any orders or guidance that applies to the employer or its business?
  • Are employees able to return to work safely? Is additional protective equipment required in order to comply with occupational health and safety requirements?
  • Will the organization resume operations gradually and if so, to what extent and when?
  • Will employees return at different times? If so, who will return when and based upon what considerations? Upon what basis will different treatment of employees be justified?
  • Might differential treatment of employees give rise to possible human rights issues or other complaints by employees?
  • If employees will be expected to work in shifts, will this comply with the Employment Standards Act, the terms of employees’ employment contracts and other requirements?
  • Will the workspace require modification?
  • Will employees be expected to comply with additional requirements such as social distancing, video conferencing rather than in person meetings, and cleaning requirements?
  • Will it be necessary to disable common facilities such as water fountains and coffee makers?
  • How will any additional expectations be communicated to employees?

How will the employer respond to employees who do not comply with any additional expectations?

Employers should also consider planning re-exit strategies, should it be necessary to cease or curtail operations once more in the future.

Employers should document their plans, monitor business resumption and employees’ return to work, and consider updating their plans as new information becomes available, or other changes occur. Flexibility is key during the “new normal.”

About : Susan Kootnekoff

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides.

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