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

Due to the recent increase in COVID-19 cases, on April 8, 2021 the BC Provincial Health Officer (PHO) has announced new measures to expedite the closure of workplaces that see COVID-19 transmission, effective April 12, 2021. As part of this order, the PHO has delegated specific powers of the Public Health Act to WorkSafeBC prevention officers to help health officials manage workplace transmission. Between April 12 and May 18, WorkSafeBC issued around 62 closure notices in the Fraser Health Region. See an updated list of active workplace closures here.

The finalized written order was released a few days after the announcement and is available  here. There were a couple of discrepancies between the details of the announcement and news reports, and the terms of the Order, so we will focus on the information provided in the Order first and include details from the announcement in the section following.

The Order includes a number of protocols that will be used when a "public health officer reasonably believes that one or more persons has been infected with COVID-19 while in a workplace and that it is necessary for the workplace or part of the workplace to stop operating to prevent further transmission of infection (...)."

The Order delegates WorkSafeBC prevention officers with the authority to serve notice of a Workplace COVID-19 Cases, Cluster and Outbreak Closure Order made by a medical health officer on a person who is affected by an Order by:
a. personally serving it on the person who is affected;
b. by posting a copy of the Order at a conspicuous location at the workplace;

The Order has no end date, and provides a template WorkSafeBC officers should use for the Notice of a Workplace COVID-19 Cases, Cluster and Outbreak Closure Order. Once served, the officer notifies the public health officers.

A couple of points to note when looking at the announcement and written Order:

• the public health officer can issue a closure order (Workplace COVID-19 Cases, Cluster and Outbreak Closure Order) if ONE or more persons have been infected in a workplace (versus the previously mentioned 3 or more)
• there is no mention of the length of the closure order in the written order (previously announced 10 or more days); however Fraserhealth specifies it is minimum 10 days;
• there is no mention of how closure can be restricted to only parts of the workplace for some more complex workplaces
• no exceptions due to overriding public interest are addressed either
• there's no further infromation on what will be required to re-open the workplace, whether WorkSafeBC officers will conduct multiple inspections etc.

Fraser Health has released more information and guidance regarding Workplace Closures including a list of active workplace closures, as well as further information on the process for reopening, 10 day minimum order and more. This covers some of the above-noted points not included in the written order. See their page here. We have included some details below:

Assessing a workplace for transmission

The likelihood of transmission on-site is assessed using testing results, information cases provide about their activities and interactions, as well as information about the worksite itself. Worksites where onsite transmission cannot be ruled out will be closed. Cases may be employees or patrons.

Length of a closure

Workplaces ordered closed by Public Health must remain closed for a minimum of 10 days to reduce the risk of transmission. This is a minimum timeline to break the cycle of transmission, taking into account the incubation period of COVID-19 and the time it takes for individuals to be tested. An incubation period is the time from exposure to the start of symptoms.

However, if more recent exposures than were already known are found on-site, it could delay the reopening of a workplace. Public Health will notify a business as soon as possible if any changes to the reopening timeline are expected.

During a closure

During a 10-day closure, Public Health will continue to investigate the risk of COVID-19 transmission at the workplace, as well as any new cases identified in connection to the workplace. They may also need to gather further information about the workplace staff or the COVID-19 safety plan and procedures.

If Public Health cannot gather sufficient information in order to assess the transmission risk, reopening may be delayed beyond 10 days. To support a worksite reopening as soon as possible, a worksite representative should be available to assist the investigators during this time.

Public Health or WorksafeBC may need to inspect the site either during the period the business is closed or at the time of reopening. This supports workplaces in strengthening their COVID-19 safety plans to reduce the chance of transmission at the workplace if new cases come to the worksite after reopening. An inspection can assist in answering any questions a business may have about COVID-19 safety plans, and it will identify and address any issues before reopening.

If Public Health does not require additional information for their investigation, a workplace may not hear directly from the cluster investigation team.

Reopening after closure

Public Health or WorksafeBC will work with you on any changes required to your COVID-19 safety plan during your closure. You may reopen 10 days after the closure unless you hear otherwise from Public Health.

The Fraserhealth page also provides some FAQs, confirming:

• there is currently no reconsideration or appeal process for a closure order
• Fraser Health previously mentioned workplaces could not open even with new/different staff, however this note has been taken down from their FAQ page
• staff not officially identified as close contacts could work at different sites however it is strongly discouraged to avoid posing risk to another worksite
• closures only occur if transmission is likely to have happened within the workplace, as determined by a public health investigation

Previous Announcement Details from the Joint Statement on BC’s COVID-19 Response (April 8, 2021):

“Starting Monday, when the public health investigation determines that transmission has occurred at the workplace, an order may be issued closing the workplace for 10 days or longer to stop the transmission. In the case of complex workplaces (e.g., large construction sites), the closure may be restricted to those parts of the workplace where transmission has occurred.”

“Public health will also assess whether there is an overriding public interest to keep the workplace open. This would apply to such locations as police stations, fire halls, health-care facilities, schools, shelters, the ferry system, public transportation and distribution hubs of necessary goods such as food and medicine, pharmacies and grocery stores.”

“When a closure is ordered, WorkSafeBC will serve the closure notice and will then support the workplace to review and enhance safety plans, as needed. A list of workplaces that have been closed and the date of their reopening will be posted on the health authority websites. In all cases additional outbreak control measures, including contact tracing and immunization will continue under public health direction.”

Information from WorkSafeBC Site:

Under the PHO order, the powers delegated to the WorkSafeBC prevention officers will be limited to serving a closure order on a business with a known COVID-19 outbreak. The closure order will be in effect for a period of 10 days or more, as prescribed by the health authority’s medical health officer on a case-by-case basis, and served by WorkSafeBC officers when directed to do so by a provincial medical health officer.

Visit from WorkSafeBC or Environmental Health Officer & Tips from Experience of Clients

Public Health may conduct an on-site inspection prior to ordering the closure of a workplace, however in most cases they do not. This may be carried out by a WorkSafeBC prevention officer or an Environmental Health Officer. This may include physical site inspection, interviews of employees, and a review of the employer’s COVID-19 Safety Plan. If you are the subject of an inspection, we recommend being open and sharing your COVID-19 Safety Plan to really highlight the safety measures in place that prevent transmission in the workplace. We also recommend that you seek professional advice at this stage as soon as possible. Based on the experience of some of our clients and colleagues, it is more likely that once a Covid-19 case is reported by an employee, an officer will interview them regarding conditions at the workplace, and the officer will also contact the employer to ask questions and potentially request their Covid Safety Plan.

Once the investigation completed, a Medical Health Officer will make the final decision on whether the circumstances warrant closure. We note again that an order may be issued to prevent transmission and to allow time for the workplace to update its COVID-19 Safety Plan. Sometimes this decision will be communicated by phone to the employer prior to service of the Order on the premise. If you get notified and don't believe a proper investigation was conducted or the case doesn't expose any other employees, seek advice right away. There may be a small window to push back before the closure order is actually delivered.

Once the decision has been made, the WorkSafeBC prevention officers have been delegated to serve notice of the closure order. At this stage, the Officer has no discretion to cancel the order or make any major changes to the Order. However, the officer can determine whether any individuals will be permitted to remain at the workplace during a closure. So it will serve employers to consider these issues carefully with WorkSafeBC to determine if certain employees can remain at work or certain departments can safely remain open without risk of further transmission.

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Recommendations for Employers

• COVID-19 Safety Plans: all employers should review their COVID-19 Safety Plan and ensure it is in compliance with the WorkSafeBC guidelines, and that it is being followed closely by all;
• Remote work: as part of the increased measures announced on March 29, 2021, the PHO included direction for employers to continue to actively support remote working options wherever operationally possible.

We will continue to update this article with further information once available.

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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