Coronavirus and Your Workplace: Thoughts for Employers from an Ontario Employment Lawyer

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

UPDATE: With Ontario today mandating closure of all non-essential businesses, effective March 25, we can urgently hope for updated legislation shortly, to guide employers'decisions in the face of CoVid19, and to provide much-needed income security benefits for employees. 

Pending such an announcement, however, we must assume that the current legal framework, which is discussed in part by Simran Bakshi below, remains in effect.  

That may change, both through amended laws and decisions the Courts will make, perhaps many months from now.  We will continue to provide updates, as events unfold.

- Garry J. Wise

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With words like “pandemic” and “state of emergency” being used to describe the novel coronavirus, it is understandable to feel a bit overwhelmed.

This is all the more true for small businesses across Ontario, who are faced with the challenge of staying financially afloat while prioritizing the health and safety of their customers, employees, colleagues and community.

Perhaps the best advice we can offer at this time is to breathe…

There are steps you can take as a small business owner to protect your business, while doing your part to protect those around you.

1. Remember that the most important aspect is to maintain the health and safety of the workplace

You will inevitably find yourself at a crossroad regarding whether to continue operations to the extent that is possible (based on applicable government regulations), or alternatively, to find a middle ground, such as facilitating remote operations from home, where suitable to your industry. 

In some cases, pre-emptively shuttering your business may appear to be your only, available option, particularly if you are subject to legal shut-down requirements in the current, mandated state of emergency.

Your duties as an employer pursuant to the Occupational Health and Safety Act, RSO 1990, c 0.1 [“OHSA”] should be at the forefront of your mind in making this decision. Employers are required by OHSA  to:

• Take all reasonable precautions to protect the health and safety of workers; 

• Ensure that equipment, materials and protective devices in good working condition are provided to workers; and

• Providing information, instruction and supervision to workers to protect the health and safety of workers;

These obligations apply to not only employees, but to independent and dependant contractors, as well.

Essentially, this means that if you decide to keep your business opened, you must ensure that:

• Persons with flu-like symptoms are not granted access to the work premises;

• The work environment is clean and recommended hygiene practices. such as frequent hand washing and work-area disinfecting, are actively being promoted and implemented;

• Physical and social interactions are limited to the extent possible;

• Your workers are informed of your coronavirus health and safety policies;

Consider:

• Implementing early screening processes to determine whether any persons scheduled to attend at the workplace may have travelled recently, or exhibited symptoms of the coronavirus, or had exposure to someone who is confirmed to have the coronavirus or exhibits such symptoms;

• Minimizing work meetings and events;

• Allowing workers who can work from home to do so;

• Investing in technology to allow more workers to work from home, if possible;

• Implementing social distancing practices in the workplace, such as limiting any physical interactions (i.e. hand shakes); scheduling workers at different times; and separating work and lunch spaces;

• Providing necessary safety measures such as hand sanitizers and disinfectant wipes; 

• Increasing sanitization practices;

• Arranging a teleconference meeting to inform workers of the health and safety measures in place, and related policies regarding sick leaves and other absences from the workplace; 

Keep in mind that your workers have the right to refuse to work if they have reason to believe their health and safety may be at risk (subject to certain exceptions based on the type of job). Prepare yourself for this possibility and have a contingency plan in place should this occur.

Among the worst things an employer can do to is compel a worker to continue to work despite their legitimate safety concerns, or to discipline or threaten the worker for exercising their right to refuse to work.

All such steps could be considered unlawful, and could expose the employer to legal risk and potential liability for significant damages and penalties.

2. The option of laying-off employees

If you are wondering how you can possibly afford to continue operating your business with little to no incoming revenue, you’ve likely already turned your mind to the different ways you can curb your business expenses.

With payroll often being one of the largest operational expenses in a business, it may be necessary to consider temporarily layoffs as the coronavirus pandemic peaks.

The decision to lay employees off is a difficult one, and it also carries significant legal risk.  A layoff is not a termination. It is by definition, temporary in nature, premised on the mutual understanding that the employee will return in due time.  Employees who are laid off are typically entitled to EI benefits during their absence, and salary payments are suspended.

As discussed in our previous blog article, if an employee is not recalled to work within the required timelines (initially, 13 weeks)  prescribed by Ontario’s Employment Standards Act, the layoff is deemed to be a termination.

The employee then becomes entitledto statutory termination payments, and in larger organizations after five years' employment, to severance pay, as well as potential damages at common law for wrongful dismissal.

While a temporary layoff might appear to be a tempting tool for employers during these uncertain times, Ontario courts have long held that layoffs are not available at every workplace.

Generally, layoffs are not necessarily permitted unless there is a valid employment contract between the parties that specifically or implicitly authorizes such a layoff.

If you do not have a written contract with your employee providing for the right to layoff, don’t panic just yet.

It may well be that your employee is as keen to be laid off during this time as you are to reduce employee costs, since this presents a number of mutual advantages including that:

• Employees will no longer have to attend at work; 

• Employees may continue to receive employment benefits if you elect; 

• Employees can access unemployment insurance benefits for income support; and 

• Perhaps most importantly, employees will have the right to return to work once recalled.

It may be worthwhile to have a discussion with your employees regarding whether they will voluntarily agree to a temporary layoff. 

If there is such an agreement, this should be confirmed in writing. 

It is advisable to consult with an employment lawyer regarding any temporary layoffs that are contemplated and the documentation that may be required should you proceed in this direction.

3. Its time to be creative…

As every successful business owner knows, where there is a problem, there is often a parallel opportunity.

While it is becoming increasingly challenging to continue business as usual, you should consider how your business could adapt during this time. 

Can some of your business be conducted remotely or online? Are there certain ad hoc tasks and projects that your employees can be working on from home? 

Can you use this time to focus on your marketing plan or budget for the year ahead? Perhaps now is as good a time as any to review your workplace policies and protocols.

Whatever it is that you choose to do, it is best for your business to keep calm and make decisions with a clear mind based on all the information available to you.

[1] Occupational Health and Safety Act, RSO 1990, c 0.1 at s. 25 and 26;

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net