Government and public health rules have helped enforce policies, but it's more complicated now
The next stage of the COVID-19 pandemic facing Canadian employers – including the removal or lessening of at least some mandates and protocols – will perhaps be one of the most challenging yet, says Jamie Jurczak, a partner at Taylor McCaffrey LLP.
“In some ways, it has been relatively easy for an employer to implement a COVID-19 health and safety policy, because they have largely been told what to do by governments and public health authorities,” she says. “But with the lifting or lessening of these rules, that all changes.”
Jurczak, one of the presenters at the Canadian Lawyer webinar Occupational health and safety: Critical updates for employers on March 2, says that lawyers will now likely have to spend time explaining to employer clients about the need to do a specific COVID safety analysis for their business.
“Employers will have to look at the workplace, assess the risks using the most reliable information they had, and then make decisions on what policy to implement.” The labour and employment lawyer also points out that because of the government and public health rules, many employers have not even had to do a full COVID-related safety audit – until now.
The policy for one business – for example, a manufacturing plant where workers are close together and must be on-site – may be different in another workplace, one where there is more flexibility for employees to work remotely.
“The nature of the workplace and workforce, the ability to physically distance, the ability to obtain proper protective equipment or testing for COVID – these are all factors that employers will have to consider.”
And while there might not be specific government rules on aspects of COVID-19 safety protocol, Jurczak says there will likely still be public health “guidance.” She says that employers will have to decide how to weave any such guidance into their policy.
Jurczak also notes that employers will also have to deal with COVID-19 protocols potentially being vastly different across the country. Provinces like Alberta and Saskatchewan have already lifted all mandates related to the pandemic, while others are looking at reducing restrictions in a more measured way.
In addition to developing a COVID-19 safety protocol in an ever-changing environment, the heightened emotions on both sides of the debate on issues such as masks and vaccine mandates and passports could likely make it difficult for those policies to be accepted and followed by employees.
The current protests and border blockades by opponents of pandemic mandates, and the reaction of those on the other side, are evidence of that.
In Ottawa, for example, the so-called “Freedom Convoy” of those opposed to mandates is now in its third weekend of occupying the streets of Ottawa near the Parliament buildings. Other protestors have blockaded border crossings between Canada and the United States, including the border point with the largest amount of traffic, the Ambassador Bridge in Windsor.
There will be employees who maybe refuse to wear a mask, despite a policy that says they should, while other employers won’t necessarily want to work next to unvaccinated or not wearing a mask.
Finding a solution to that situation could prove challenging, Jurczak says, within the context of an employer being responsible for the health and safety of employees and recognizing that there may be no specific laws to enforce certain practices related to minimizing the spread of COVID-19. “What is ‘reasonable’ as far as policy could be tricky.”
Another occupational health and safety issue that has broadened in scope since the start of the pandemic, says Jurczak, is how to deal with an injury that occurs to an employee while working from home. Is a fall while going down the stairs to get a coffee while working from home a workplace injury? What about an injury while trying to unjam a printer while working at home? Does the employer have a responsibility to ensure that an employee working from home has ergonomically correct equipment and location?
“These are things that arbitrators, labour relations boards and courts will have to work out,” she says. “But I think it’s something that everybody needs to be aware of - if an employee gets injured while working at home, there is the possibility of that injury being covered under provincial workers’ compensation legislation.”