Photo credit: Calm for Business
Given that we are in the fourth wave of the pandemic, greater expectations will be placed on employers to get their responses to the pandemic right.
Meaning, employers are expected to be more than well familiar with and used to the occupational health and safety, and as applicable, public health requirements to keep their workplaces safe for their employees, clientele, or guests. This includes masking, vaccination and vaccination disclosure, handwashing, social distancing and other preventive measures to slow the spread of COVID-19, particularly given the highly contagious nature of the Omicron variant.
What employers may miss is that given a) the differences in transmission risks of the Omicron variant versus the original virus and other evolving risks, b) medical information pertaining to COVID-19, and c) workers’ and the public’s responses to the pandemic and the impact on their lives, employers may be required to update their COVID-19 risk assessments and resulting health and safety policies, procedures and protocols.
The Ministry of Health in Ontario has released a guideline for COVID-19 standards in the workplace that provides a list of resources to prevent the virus from spreading in the workplace. This guideline also suggests various administrative controls be put into place.
To recap, employer’s health and safety issues under Ontario’s Occupational Health and Safety Act (the “OHSA”), include the requirements of:
- Ensuring workers (broadly defined in the OHSA) know about any potential hazards by providing them with information and updates on public health guidelines, requirements and standards as well as their health and safety policies and any updates or amendments to them given the evolving legislative and regulatory requirements (in some workplaces), medical information, public health guidelines and standards, and the virus itself. This also includes providing clear instructions as to workplace requirements and employer expectations, training and instruction on such requirements and expectations, as well as ongoing supervision in relation to how employees are adhering to their policies, instructions and/or expectations. It is not enough – like any policy, instruction or expectation – to have it and communicate it; they all need to be monitored to ensure understanding of their contents, reinforced and enforced.
- Ensuring managers and supervisors monitoring and enforcing the policies, procedures, protocols, expectations and requirements have been trained on and know exactly what is necessary to protect the health and safety of their workers given the risks in their individual workplaces.
- Ensuring all workers: (a) have appropriate protective equipment – as mask requirements for example (medical vs. homemade) will differ by the differing associated risks of the workplace; and (b) are trained on how to use them. To continue with the mask example, employees must know to cover their noses securely and ensure that other workers and the public do the same.
- Ensuring to take all precautions reasonable in the circumstances to protect workers from being hurt or getting work-related illnesses. For example, are employers continuing to screen workers who attend at their workplace? Are employers reinforcing a policy that workers who are ill must stay at home or risk disciplinary action? If not, they are not taking the reasonable precautions to protect the health and safety of their workers and in breach of the OHSA and/or not falling under the protections from liability of Bill 218 – Supporting Ontario’s Recovery Act (the Act).
Given the increased COVID-fatigue and burnout this may also require:
- New or amended anti-violence policies given the rise of individuals’ intolerance of ongoing restrictions, frustrations given the persistence of the virus and the disruptions to their lives, absent-mindedness arising from isolation, and/or mental health illnesses associated or arising in connection with the pandemic, the fear and anxiety it creates, and the lack of social interaction generally.
- Further and other accommodation or employee benefit entitlements to address or prevent such fatigue or burnout – beyond the new disconnecting from work after-hours requirements of the ESA.
Employers at this late stage (hopefully) of the pandemic are also expected to be well versed in relation to responding to employee, clientele and other public accommodation requests for services or accommodations that fall within the protection of the Ontario Human Rights Code (the “Code”). Thankfully at this juncture there is more public guidance then there was during the first wave, including a series of questions and answers released by the Ontario Human Rights Commission on its website.
As such, it is prudent for employers to have in place – and posted – online and at the workplace their policies on all of these pandemic-related health and safety and accommodation issues.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
You can connect with her on LinkedIn or contact her at sljohnson@sullivanmahoney.com.
