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Chris Drinovz, head of the Employment & Labour Group at KSW Lawyers, had the pleasure of co-hosing an informative webinar for the Abbotsford Chamber of Commerce on May 26, 2020. We think there is important information that should be shared with our clients and friends, so we did a summary for you here in this blog post.

During the webinar, we focused on health and safety and reviewing COVID-19 Safety Plans and secondly, How to Deal with Work Refusals. There are also some of the live Q&As listed at the bottom of this blog.

Topic #1: COVID-19 Safety Plans

On May 8, 2020, the Province of BC rolled out its 4-phase “Restart Plan”. On May 14, 2020, we entered “Phase 2” of the Restart Plan. The condition for the reopening of the Phase 2 businesses was that every business must follow enhanced health and safety protocols established by the government to protect workers and customers.

This was made LAW by an Order of the Provincial Health Officer, Dr. Bonnie Henry issued on May 14, 2020 called “Workplace COVID-19 Safety Plans”

That Order invokes section 21(2)(c) of the Workers Compensation Act and directs ALL employers to establish a plan to ensure that the risk of transmission of COVID-19 at workplaces is minimized. This is called a “COVID-19 Safety Plan.”

The PHO also ordered that all employers must:

1. Post a copy of the COVID-19 Safety Plan on their website and at their workplace so it is readily available for review by workers and others; and
2. Employers must provide a copy of their COVID-19 Safety Plan to a health officer or a WorkSafeBC officer on request.

Remember, this is LAW it is not a suggestion, not following this Order can result in significant fines to your business, starting in the tens of thousands of dollars. These fines are reviewable, so if you do receive a fine or you have been contacted by WorkSafeBC regarding your Plan, be sure to seek guidance from your legal advisors or our team.

The other thing to note is that currently this Order does not have an expiration date so these obligations will continue until the Order is rescinded which likely will not be until 2021.

“What is required for my COVID-19 Safety Plan?”

In essence, your Plan must demonstrate that you have properly assessed the risks of COVID-19 transmission in the workplace and taken the appropriate measures to reduce these risks. On its website, WorkSafeBC states that when it does a health and safety inspection, the question it will ask of employers is “what steps have you taken to protect your workers?”

WorkSafeBC has provided a very helpful six-step Guide for developing a Safety Plan – this is accompanied by a Planning Tool which provides guidance and checklists for each of the six steps which can be found here: https://www.worksafebc.com/en/about-us/covid-19-updates/covid-19-returning-safe-operation

Industry-specific guidelines and resources are now available for the following sectors:

• Arts and cultural facilities
• Child care
• Education K-12
• Gyms and fitness centres
• Health professionals
• In-person counselling
• Offices
• Parks
• Personal services
• Real estate
• Restaurants, cafes, and pubs
• Retail

The Safety Plan follows the six steps as provided by WorkSafeBC:  

Step 1: assess the risk at the workplace

Step 2: Implement measures to reduce the risk

Step 3-5: Develop Policies, Communicate Your Plan, and Monitor your Plan

Step 6: Assess and address risks from resuming operations

Topic #2: Work Refusals

Work refusals are a hot topic right now and we have received many questions from our employer clients wondering how to deal with a particular employee that is refusing to come into work.

What we focused on here are cases where the employee points to unsafe work conditions as the basis for the refusal, which must be handled carefully under health and safety legislation.

Right to Refuse Unsafe Work

Workers have the right to refuse unsafe work under section 3.12 of the Occupational Health & Safety Regulation. In essence, the test is this: “If a worker has reasonable cause to believe that performing a job or task puts them at risk of undue harm, they must not perform the job or task.”

The OHS Guidelines provide further guidance on what this test actually means. It boils down to two key words: undue harm and reasonable cause. So “undue harm” means "excessive or unwarranted”. We are looking at whether there is a condition that may expose a worker to an excessive or unwarranted risk of injury or disease. This is a very high standard and clearly just some risk or the average risk that everyone is exposed to will not be sufficient.

Second, the use of the term "reasonable" in "reasonable cause to believe" means that the worker must assess the situation as a reasonable person, taking into account relevant and available information and exercising good faith judgment. This means the test is “objective” and not just based on the worker’s own personal opinion, the concerns must be realistic and actually supported by evidence

In the era of COVID-19, most work refusals are based on the employee’s view that returning to the workplace will expose them to COVID-19. Now our view is that so long as you have established a Safety Plan in accordance with WorkSafeBC’s guidelines and industry-specific protocols, you have clearly communicated this Plan to your employees AND the plan is implemented and being followed, there is little risk that the employee can legitimately refuse to come to work.

The Process

If you are faced with a work-refusal, there is a four-step process mandated by the OHS Regulation:

Step #1: The worker must report the unsafe condition to the employer

Step #2: Once the safety concern is identified, the employer must investigate and report back to the worker

Step #3: If the worker still refuses – employer must do a repeat investigation in their presence

Step #4: If the refusal continues after the second investigation with the worker present, you must contact a WorkSafeBC Officer to investigate and make a ruling

According to Ministry of Labour statistics in Toronto, there have been more than 200 work refusals filed by workers concerned about contracting COVID-19 and none of them have been upheld. This statistic confirms the very high standard required to justify refusing to work.

What You Can and Cannot Do During Refusal Process

In terms of what you can and can’t do during the refusal process:

1. You CAN temporarily assign the worker to do alternative work with no loss of pay
2. You CAN assign another worker to do the work of the worker refusing to work on a temporary basis
3. You CANNOT lay-off, terminate or make any other type of negative employment action against the worker before completing these four mandated steps
4. If you did retaliate against the worker either during the process of afterwards, the worker can bring a Prohibitive Action complaint against the company and WCB can award reinstatement, lost wages and other damages to the worker so be very careful about this
5. Throughout the entire process, make sure everything is properly papered

Other Things You May Want to Consider

There are some alternatives and options to consider for valued employees with unsafe work concerns outside of the WorkSafeBC process:

• Consider whether the worker wants to use sick or vacation time or even take an unpaid leave until they feel safe again
• Consider whether you qualify for the Canada Emergency Wage Subsidy (CEWS) and if so, whether you can offer the worker a paid leave on a fully-subsided but reduced wage. We note that WorkSafeBC just announced that premiums would be waived on the wages paid to employees on leave with pay (furloughed employees). We also note that that the CEWS was extended to the end of August can be extended up to the end of September by regulation.

Final Comment: Protecting mental health

Our final comment is not to lose sight of mental health. Many of your workers are going to have increased anxiety about returning to work and being around co-workers. Make sure your workers know that you support them and ensure they are aware of the many mental health resources out there - for example, there is free virtual counselling service provided by registered psychologists through WorkSafeBC called the COVID-19 Psychological First Aid Service. Put this in your Safety Plan as a resource and let your employees know you care about them.

Webinar Live Q&As

1. Do I need to post Safety Plan on website?" open="on" _builder_version="4.4.6

Yes. Pursuant to the Order of the Provincial Health Officer, you must “Post a copy of your COVID-19 Safety Plan on your website, if you have one, and at your workplace so that it is readily available for review by workers, other persons who may attend at the workplace to provide services and members of the public.”

2.  What do you know about CEWS being extended further?" open="on" _builder_version="4.4.6

On May 15, the Finance Minister announced that the Government of Canada will extend the Canada Emergency Wage Subsidy (CEWS) to August 29, 2020. This is the first extension of CEWS. The legislation allows for extension by regulation up to September 30, 2020 so it is likely it will be extended again, but we do not have this information at this time.

3. Do I need to issue an ROE for employees who have been laid off for longer than 16 weeks?" open="on" _builder_version="4.4.6

Previously under the Employment Standards Act (ESA), a temporary layoff longer than 13 weeks in any 20-week period (or about three months in a five-month period) was considered a permanent layoff. With a permanent layoff, employers are required to provide employees with written working notice of termination and/or pay severance to qualifying employees, based on their length of service (and issue an ROE at the end of the employment relationship). Now, temporary layoffs relating to the COVID-19 pandemic can be extended to 16 weeks, if the employee agrees. 

Although a longer lay off might be considered a termination for the purposes of the ESA, we strongly recommend communicating with your employees and trying to reach an agreement if further time is required due to COVID circumstances. A lot of employees are willing to work together to support their employer and keep their jobs and with the added support of the numerous financial aids, including CERB, CEWS, CEBA, Rent Assistance, Work Share, Sub Plan, this could be possible. We recommend reaching agreements where possible before terminating valued employees, and we can help you ensure the agreements are documented accordingly. You can read more about the other programs in our previous blog posts here: https://www.ksw.bc.ca/employment-labour-blog/

4. How will WorkSafeBC enforce and fine?" open="on" _builder_version="4.4.6

WorkSafeBC Prevention Officers have the authority to inspect workplaces and their Safety Plans, and issue penalty orders and fines for breach of the health and safety legislation and regulations. Our view and hope is that so long as the employer shows due diligence and general compliance with the WorkSafeBC Guidelines, the Prevention Officers will use their discretion to work collaboratively with employers rather than look to be punishing them.

If you are fined, the amount of the penalty is based on a company’s total assessable payroll and the nature of the infraction. Such fines will significantly increase in amount for repeated infractions. These fines are reviewable, and you can contact our team if you require assistance.

5. How much “common law” notice do people need to get because of the current workforce market?" open="on" _builder_version="4.4.6

Since the decision in Bardal v Globe & Mail in 1960, courts have relied on the set of factors laid out when calculating the length of the reasonable notice period to be awarded to a terminated employee that does not have a written or implied term limiting severance pay. These “Bardal factors” include the length of the employee’s service, age, character of the job they have lost, and availability of similar alternative employment. The economic downturn caused by COVID-19 will likely impact how courts calculate reasonable notice. In previous economic downturns, the courts have provided for increased notice periods, however they have explicitly stated that this factor cannot be given undue weight. At present, we do not have any legal precedent for how our courts in BC will treat the pandemic when assessing the notice period.

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues unfold. This is not legal advice. If you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact our Employment & Labour Group: Chris Drinovz at [email protected], Mike Weiler [email protected]