Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

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In this follow up article, we have compiled a list of FAQs and answers from various sources including guidance the B.C. Government has released for its own Public Service employees. Read our previous FAQs article here.

How will COVID-19 vaccination change workplace safety plans?

Workplace safety plans and Public Health protective measures, when followed, are successful in providing protection from COVID-19 transmission in our workplaces. The practices each reduce the risk of transmission and, as layers, together minimize the risk of COVID-19. These practices include staying home when sick, screening for symptoms, wearing masks, sanitizing, and most importantly keeping two metres distance from one another.

COVID-19 vaccination, which is shown to be highly effective, provides a further layer of protection for individuals from COVID-19 infection and severe illness. These layers of protection will remain an important workplace practice and permit safe delivery of services to clients with unknown immunity status.

The current Public Health vaccination strategy is focused on prioritizing vulnerable individuals and by age demographics, so vaccination levels in the BC Public Service workforce will vary over time. Workplace Safety plans and public health practices will continue to maintain workforce protections as the immunization plan is completed or until there is a change in Public Health direction.

Will employees be able to take leave to get their Covid-19 vaccination?

As part of B.C.’s COVID-19 Immunization Plan, workers in B.C. are guaranteed three hours of paid leave to receive each dose of their COVID-19 vaccine. The update to B.C's Employment Standards Act applies to full- and part-time workers and is retroactive to April 19, 2021. This is in addition to the change from April 1, 2021, when the B.C. Government expanded the scope of the current job-protected unpaid COVID-19 related leave under the Employment Standards Act by granting all part-time and full-time workers with the ability to take unpaid time away from work to receive the COVID-19 vaccine.  The two leaves can be used together and workers will be able to take the paid 3 hours time as needed to travel and receive the vaccine or used additional unpaid leave to take a dependent family member to receive the vaccine.

Additional changes to the Employment Standards Act (B.C.) include expanding the provincial COVID-19 related leave to align with the federal Canada Recovery Sickness Benefit (CRSB) and the Canada Recovery Caregiving Benefit (CRCB). A worker can now take COVID-19 related leave if they need to care for family members, not just dependents, due to COVID-19. Workers with underlying conditions, who are undergoing treatment or who have contracted another illness that makes them more susceptible to COVID-19, will also be allowed to take the leave.

Considering privacy restrictions, do employees have to tell employers if they have been vaccinated? Should employers share information on the number of employees immunized at the workplace?

Vaccination status is part of an individual’s confidential medical history. As such, most employers may not be able to compel employees to disclose personal medical information such as whether they have taken the vaccine.

That being said, the test for disclosure of personal medical information is one of reasonableness and proportionality. As such, requesting this information is likely appropriate for workplaces where safety mandates such disclosure (e.g. health care). Certain employers with legitimate health concerns will still be entitled to ask employees if they have been vaccinated (e.g. processing plants where COVID-19 exposure has historically been high). However, the employee will likely be at liberty not to respond. In such cases, we recommend treating an employee that refused to disclose as having not taken the vaccine. We also do not recommend sharing specific information on the status of immunized employees at the workplace. This might become more clear with future orders from the PHO. Please see our previous article on privacy considerations here.

Once an employee gets vaccinated should they still have to follow COVID protocols in the workplace?

Yes. Workplaces have been safe since the beginning of the COVID-19 pandemic due to the protocols and protections in place. These include:

• Active daily health checks
• Physical distancing
• Reduced workplace capacity
• Remote work
• Enhanced Cleaning
• Mask use
• Use of physical barriers
• Limiting the number of visitors and customers

Until community (or “herd”) immunity is achieved, and community transmission decreases, these protections should stay in place to protect those that are not vaccinated. Employers should follow the Provincial Health Officer’s guidance on when to scale back the protections for workplaces.

What is the current direction on returning to the workplace and remote work?

On March 29, 2021, the Provincial Health Officer announced increased measures to address the continued growth in COVID-19 cases in B.C. These included direction for employers to continue to actively support remote working options wherever operationally possible.

Where operationally feasible we strongly recommend employers to allow employees to work remotely. Information on what employer's obligations are for employees who work from home is available at the end of our article here.

The Provincial Health Officer’s order also requires daily health checks for all employees attending a workplace anywhere in the province. You can access the template we put together based on the PHO guidelines and COVID-19 Self Assessment Tool.

I am hearing about COVID-19 variants here in B.C. Is there anything my workplace should do differently?

COVID-19 variants spread the same way as the original COVID-19 virus. The same COVID-19 protocols will protect you in the workplace e.g. physical distancing, barriers, washing your hands, and staff staying home when you aren’t feeling and the use of PPE where required.

However, because variants may be better at spreading and infecting people, it is critical that everyone follows the workplace COVID-19 protocols and public health guidance at all times.

Some additional safety measures for employees attending the workplace could be requiring the use of masks at all times in all work areas, as opposed to common spaces only (this goes beyond the current PHO requirements for workers to wear masks when two metre physical distancing can’t be maintained and in lobbies, hallways, stairwells, corridors, bathrooms, break rooms, kitchens auditoriums, and gyms).

I have an employee who has tested positive for COVID-19. What does this mean for the workplace? Do we need to close our workplace?

Any employee who is sick with COVID-19 symptoms must stay home and away from others. Public Health is notified of all positive tests immediately and contact tracing will begin by speaking to the COVID-19 positive employee. This review will identify the nature of contacts in the community, social or work locations in the 48 hours prior to becoming symptomatic.

If Public Health staff identify any close contacts during this review, those individuals will be contacted directly by Public Health and given self-isolation advice. Public Health will only contact the workplace if there is a concern about transmission of the virus in the workplace or difficulty contacting individuals.

In all cases, not hearing from Public Health official means the risk of transmission is low and no further notifications or actions are required. Cleaning should take place at the workplace as soon as possible.

In terms of co-workers, determine the level of interaction with the employee. Your workplace COVID-19 Safety Plan and protocols including daily active screening, distancing and hygiene significantly reduce the risk of associated transmission in the workplace.

Low-risk exposure to a confirmed COVID-19 case includes walking by the person or briefly being in the same room with two metres distance. If low risk, the co-workers can continue usual activities, including daily self-checks for symptoms and practice good hand hygiene and social distancing in public, at home and at work.

Be prepared to provide information to Public Health officials about the workplace if they contact you. If a COVID-19 positive individual was in the workplace while symptomatic or Public Health has contacted the workplace, supervisors are encouraged to communicate when this has occurred while protecting the identity of the individual, and to convey any identified cleaning protocol that was undertaken.

With the newly announced Public Health Order on Expedited Workplace Closures effective April 12, 2021, if one or more employees have COVID-19 and public health officers determine that transmission is occurring at the workplace, an order may be issued closing the workplace for 10 days or longer to stop the transmission. See our article covering the new order here.

General COVID-19 Resource Links:

For general information on COVID-19, see the BC Centre for Disease Control online resources at http://covid-19.bccdc.ca/.

If an employee may have symptoms, the BC Centre for Disease Control’s self-assessment tool can help you determine if you need further assessment or testing for COVID-19: https://covid19.thrive.health.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at [email protected].

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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