Q&A: COVID-19 Workplaces in Small and Midsize Businesses

This week, I got the chance to interview Human Resources Professional and licensed Paralegal Samina Sial. I met Samina through the Coach and Advisor Network (CAN) of the Law Society of Ontario (LSO), and found out that she focuses on an area of law that is very close to my heart, employment relations. We had a very productive conversation and she helped me understand, generally, the impact of SARS-CoV-2 (a.k.a. Coronavirus or COVID-19) in Small and Midsize Enterprises (SMEs)’ workforces. Here are some of the questions we explored.

Q: Why is COVID-19 causing substantial economic slowdown that impacts SMEs – which seems to be worse than the 2008 financial crisis, and didn’t happen with SARS-CoV-1, MERS or H1N1?

A: COVID-19 has spread rapidly throughout the globe at an alarming rate because it is so highly contagious. To manage the spread, the Federal Government and provinces across Canada are implementing strict control measures, such as social distancing, by shutting down non-essential businesses.

Workplaces usually require social proximity, not distancing. For example, hairdressers, makeup artist, dentists, wedding planners, cleaning services, local restaurants, pubs, contractors, tattoo artists, and other similar trades would not be able to perform their job without touching their customers or being in the same environment as their customers for long periods of time. Social proximity in workplaces is then a public health challenge when it comes down to reducing or stopping the spread of COVID-19.

Countries around the world are using the same social distancing policy to slow down the spread of this virus with a similar impact in every location.

The evident consequence is that SMEs have been significantly impacted due to mandated closures, as most do not have the cashflow to endure social distancing, and they seem to have no immediate choice but to layoff their employees.

Q: How do we measure or what’s an SME?

A: There is no one standard in Canada that we can use to classify SMEs. I like to use Statistics Canada’s. It refers to SMEs based on the number of employees:

Small businesses are those with 99 employees or less.
Medium size businesses are those with 100 to 499 employees.

Q: Must every SME close during the Declared Emergency?

A: No, not every business is required to close during an emergency. Essential businesses listed by each province are required to stay open. In Ontario this list includes police, firefighters, liquor stores, law offices, and others.

Non-essential businesses, meaning every other business not listed as essential businesses, may continue to operate remotely via e-commerce.

Q: What is an essential business?

A: An essential business are businesses that provide individuals and other essential businesses or essential services with the support, supplies, systems or services they need, including processing, packaging, distribution, delivery and maintenance necessary to operate during the Declared Emergency.

Q: What is a Declared Emergency in the context of COVID-19?

A: The Ontario Government literally declared an emergency under s. 7.0.1 (1) of the Emergency Management and Civil Protection Act. This gives the Ontario Government power to make orders that impact businesses and lives substantially. There was a need for immediate action to prevent, protect, reduce or mitigate health risks to the general population, that could result in serious harm.

COVID-19 spreads rapidly and widely, and its potential harm includes death, although most individuals who get sick from the virus, recover from it within weeks. There seemed to be no other choice but to declare this emergency based on the public health consequences of COVID-19.

Q: Can a non-essential business have an essential service, goods or a mix of both, that makes it an essential business?

A: Yes, a non-essential business can have something that would be considered essential. For example, during shutdown, a Dental Office may have to provide urgent dental services to a patient.

Q: Does an essential business have the responsibility to protect its employees from COVID-19?

A: Yes. All businesses are required to protect its employees from health and safety hazards, which includes COVID-19. The Occupational Health & Safety Act applies to all workplaces regulated by Ontario’s laws and orders employers to take every reasonable precaution necessary to protect its workers.

For example, operating essential businesses should provide employees with information on hand hygiene, personal protective equipment, scheduling employees to work alone versus in groups, and other measures. But it really comes down to the size and nature of the business and its exposure to hazards, which will drive the strategy to control infectious diseases in the workplace.

Q: What can an essential business do if its operations slowdown and cannot maintain its full workforce?

A: There is hope. At the moment, there are a number of options available to businesses.

Firstly, the Federal Government has provided several programs for businesses to help them through social distancing, such as the Canada Emergency Wage Subsidy, the Canada Emergency Business Account, and others. Businesses also have the option to apply for the Work-Sharing Program.

And, after assessing all this, under certain circumstances and meeting legal obligations, SMEs have the option to temporarily layoff employees or implement wage reductions.

Q: What can non-essential business do if they have to close operations for a while?

A: Businesses can offer to top-up employment insurance payments or offer leave of absences based on the Declared Emergency. An employer may temporarily layoff its employees for 13 weeks in 20 consecutive weeks or up to 35 weeks as long as they meet the Employment Standards Act’s criteria.

I’m concerned about how employers are laying off workers and employees, because regardless of COVID-19 they will be exposed to legal liability for lack of compliance with minimum standards, which could place employers at risk of being sued for constructive dismissal.

Q: What can SMEs do to mitigate legal liability when making decisions about reducing hours of work, layoffs, terminations, and other measures that they may take?

A: I would say, make legally informed decisions and document those decisions.

There are a number of new programs the Federal Government put in place to mitigate the impact of social distancing and provincially mandated business closures, for example the Canada Emergency Wage Subsidy, subject to meeting its requirements, which may change over time.

Employers should gather all relevant information, build a strategy to face the impact of COVID-19, and document the steps taken to materialize that strategy.

The relevant information must include employers understanding the law around temporary layoffs, constructive dismissals and terminations. Employers should be aware of these risks and avoid facing future claims of wrongful terminations.

Employers are also required to take precautions in the workplace to reduce the risk of transmission of COVID-19. Perhaps employers could implement a robust policy for managing infectious diseases in the workplace.

Q: What can SMEs do to help their employees and workers with reduced hours of work, layoffs or termination?

A: SMEs should regularly communicate with its employees. They are fully aware of the economic implications of COVID-19 and keeping employees well informed seems to be in the best interest of the business.

SMEs may want to support their terminated employees by providing timely documentation for employment insurance, namely, Record of Employment. They should also provide reference letters.

Q: Is there anything else that you would like to add?

A: SMEs must understand that these are unprecedented circumstances, and every business is different, and every workplace is different. By understanding what those differences are, the business would be in a better position to select the best tools to control legal liability during COVID-19.

For those non-essential businesses get your employment relations legal framework ready now, so you can come roaring back to a more flexible social distancing and the post-COVID-19 economic growth.

If you have questions about COVID-19 in workplaces, you can reach out to Samina Sial at (905) 483-5115 or ssial@enablelegalservices.ca

Antonio F. Urdaneta is a marathon runner, a workplace lawyer, investigator, compliance coach, and thought leader at Workplace Legal. He uses coaching skills and tools to inform, advice and represent workplaces in digital and physical legal challenges and endeavours.

For health guidance/information about the Coronavirus please visit Government of Canada site.

Workplace health, safety, privacy, refusal and COVID 19

Written by Paralegal Samina Sial and Employment and Labour Lawyer Antonio F. Urdaneta  

Businesses may be struggling with managing workers’ expectations. Some of them may not feel comfortable with giving employers medical, family and travel information.  Businesses may argue that they need this information to fulfil their obligation under health and safety laws. 

Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers have a legal obligation to ensure that they take every reasonable precaution necessary in the circumstances to protect workers. This means that employers should take reasonable measures to prevent, among other hazards, the spread of diseases, like COVID-19.  

Even though employers have legal obligations to take precautions, they should not explore an employee’s private life outside of work, unless an event is connected somehow with work or impacts the business’ reputation. Neither should an employer ask for an employee’s medical information, unless the information is necessary to provide accommodation under human rights laws, which is usually limited to work restrictions and reassessment dates. More specifically, under normal circumstances, medical diagnosis from an employee was not allowed, but within this pandemic unprecedented time it may be considered necessary to get from an employee a COVID-19’s negative test result before that employee resumes work.

Reasonable Precautions

Generally, an employer cannot order employees to take a test, and has much less discretion to conduct random tests, temperature check included. But in most circumstances, if not all, health and safety concerns will trump the employee’s privacy in the workplace. Putting testing aside, if an employer has information that suggests an employee was confirmed to have contracted COVID-19, it may be a reasonable precaution to request evidence that the employee is no longer contagious, and it is safe for the employee to return to work. 

An employer may also ask an employee to self-isolate for fourteen days by staying home if they have COVID-19-like symptoms, disclose they have COVID-19 or have been exposed to someone who has been tested positive with COVID-19. However, if an employee can continue to work from home and the employee is well enough to do so, it would be wise to allow the employee to work remotely while self-isolating.

Employers can request employees not to travel for personal reasons, particularly to high-risk countries identified by public health authorities, but they cannot impede an employee from traveling for personal reasons. However, employers can prohibit employees to take non-essential business travel. Employers would like to make their employees aware of the consequences of travelling upon return as informed by public health officials, namely he or she would be required to self-isolate before resuming local activities, including work.

Usually, the questions below would not be necessary for an employer to take steps to protect the workplace against health and safety hazards:

  • Are you COVID-19 positive?
  • Did you travel recently?
  • Did you have contact with or cared for someone diagnosed with COVID-19 within the last 14 days?

It is too early to predict how administrative decision makers and courts would treat an employer who pushes an employee to provide medical information related to COVID-19 in order to prevent transmission of the infection in the workplace.

Work Refusals

To add insult to injury, other workers who willingly give employers medical information may refuse to work arguing that the working conditions endangers them, when co-workers decide not to disclose COVID-19 related medical information. And what can you do? Accept non-disclosing workers to return to work? Be flexible with work refusals at the discretion of employees?  

The employer must conduct an internal investigation, typically in the presence of the worker who refused, and its health and safety representative or its Joint Health and Safety Committee. The persons conducting the investigation should record the circumstances of the refusal and the investigation process and take any necessary action to remove the danger and ensure it is safe for the employee to perform their work.

If a worker continues to refuse to work, the Ministry of Labour (“MoL”) must be notified and an a MoL Inspector will visit the workplace to investigate the work refusal. If an inspector does not find justification for the work refusal under the statutory threshold, the refusing worker will be expected to return to work. If the inspector finds otherwise, then the inspector will order for corrective action to be taken.

Potential solutions

The best way to deal with this balancing task is to follow the recommendations given by Public Health Agencies and Ministries of Labour.  

At a minimum, employers should have policies outlining the purpose of collection, storage, access and use of any private and confidential information, compliant with privacy legislation.

Employers should clearly communicate expectations with their employees. Employers can expect employees to inform the company if they have COVID-19-like symptoms, have been tested for COVID-19, or have been in close contact with anyone who has been tested positive for COVID-19. And that the employee will comply with self-isolation to prevent the spread of COVID-19. 

At a minimum, employers must educate employees about their health and safety policy, which should include infectious diseases. This way, employees know what to do to prevent transmission of the virus. This may mean that employees are required to follow procedures for physical distancing, wear personal protective equipment, or even perform work differently using technology.

More importantly, a well-written and well-communicated policy, aligned with public health officials and ministries of labour recommendations can reduce an employer’s liability, and contributes with healthier and safer workplaces and culture, increased employees’ morale and an engaged workforce.

Managing Employee Records

Employee information such as Social Security numbers, confidential health information, birth dates, even marital status is all information that should be protected.

Keeping comprehensive and thorough records is an important aspect of any business and knowing how to store and manage employee files is critical.

The following items are recommended to be included in an employee file (if applicable):

  • Application or resume
  • Offer letter
  • Confidentiality/ non-compete agreement
  • Handbook acknowledgement
  • Background check consent form
  • Performance records
  • Training records
  • Emergency Contact Information

Since Managers often have access to such files it is important to make sure that all protected information be removed or kept in a separate locked filing cabinet.  Protected information could be color coded so that it may help to serve as a reminder that the information contained is confidential and access to the files limited.

Examples of protected information include:

  • Paperwork from a leave such as the Family and Medical Leave Act
  • Return to work letters from doctors, or any doctor’s letters
  • Benefit enrollment papers
  • Workers’ compensation information (with the exception of Functional Abilities Forms)
  • Harassment allegations and findings of legal investigations

All employee files should be kept for a period of seven years.

Many employers are guilty of having incomplete files and it is advised that they should be audited periodically to ensure all pertinent information is on file and accurate.

Limiting access to files is very important and if not enforced, could open the door for legal action against the company.    Information regarding an employee’s health should be accessible only to those who manage the files.

Mismanagement of confidential information can be a huge liability for any business. Time spent ensuring employee files are properly handled and stored is time well spent.

Health & Safety Inspections

Workplace inspections help prevent injuries and identify to record hazards.  Corrective actions should be taken to minimize the risk of injuries.  Workplace inspections should be a very important part of every Occupational Health & Safety Program.

The purpose of inspections is to allow employers to listen to the concerns of workers and supervisors, gain an understanding of jobs and tasks, identify existing and potential hazards and determine the underlying causes of hazards and finally to recommend corrective action.

Depending on your company, inspections can be carried monthly, quarterly or as frequently as needed (recommended monthly).  The frequency of planned formal inspections can be determined by past accident/incident records, number of shifts (as the activity of every shift may vary) and new processes or machinery.  High risk areas should receive extra attention and should be inspected more frequently.

It is often recommended to conduct inspections as often as committee meetings but not to conduct an inspection immediately before a committee meeting.  Try to separate inspections and meetings by at least one week as this will allow time for small items to be fixed and gives the committee an opportunity to focus on issues requiring further action.

Formal inspections should be carried out by a Health & Safety Representative/Committee Member and the employer, (or a member of management), especially if they have received training or certification.  Other employees who should be part of the inspection team are those that are knowledgeable of regulations and procedures and may be aware of potential hazards and have experience with the work procedures involved.

The types of hazards to look for in an inspection will depend upon the type of environment, equipment and process used for your business.   Some of the hazards to look for are:

  • Safety Hazards: Inadequate machine guards, unsafe workplace conditions, unsafe work practices
  • Biological Hazards: Caused by organisms such as viruses, bacteria, fungi and parasites
  • Chemical Hazards: Solid, liquid, vapour, gas, dust, fume or mist
  • Ergonomic Hazards: Anatomical, physiological, and psychological demands on the worker, such as repetitive and forceful movements, vibration, temperature extremes, and awkward postures arising from improper work methods and improperly designed workstations, tools, and equipment
  • Physical Hazards: Noise, vibration, energy, weather, heat, cold, electricity, radiation and pressure.

The information to include in an inspection report could be:

  • Diagrams: Drawing of a plant layout or floor plans
  • Equipment: Type of machinery or equipment used and a review of the technical safety data sheets
  • Chemical: Determine which chemicals are used and whether material safety data sheets (MSDS’s) are available
  • Checklists: Clarify responsibilities, controls of inspections.  Once completed, it provides a written record of the inspection being carried out
  • Reports:  Inspection reports are important as past reports provide hazards identified and areas the inspection team concentrated on.  Reports can also help to identify areas where hazards may have caused multiple injuries.

A report should include all unfinished items from the previous report with details of the hazard such as location and recommended method of control.   Each hazard should also be assigned a priority level and a corrective date.

Finally, management must be made aware of the problems in a concise, factual way so that they can understand and evaluate the problems, assign priorities and quickly reach decisions.