Webinar: Health and Safety During the Covid-19 Pandemic

Does your workplace meet the Health and Safety standards to re-open after the pandemic?

Do you know what to do if an employee suggests they don’t feel safe returning to work?

As an employee, if you don’t feel safe, do you know what to do?

How do Health and Safety requirements apply for people working from home?

Health and Safety in the workplace is always an important issue for all of us. These days, it is front and centre. With workplaces poised to re-open, employers and employees may face some challenging issues and have difficult conversations regarding health and safety in the workplace.

This is an informative and interactive webinar with Doug MacLeod, a leading employment lawyer with over 30 years of experience. Doug discusses Health and Safety issues in this new environment and takes questions from the audience. He shares ideas about managing the challenging conversations associated with these requests.

To learn conflict resolution skills that you can use at work and in your personal life, please visit our Alternative Dispute Resolution Workshop page to learn more about upcoming in-person and instructor-led online sessions.

To improve your negotiation skills and get the results you want while negotiating, please visit our Become a Powerful Negotiator Workshop page to learn more about upcoming in-person and instructor-led online sessions.

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Webinar: Health and Safety During the Covid-19 Pandemic

Here’s the video link: https://www.youtube.com/watch?v=C9Z5TOixwr4

{Transcript}

[Music]

My name is Eleanor Witor, and I would like to welcome you to our webinar on health and safety issues during the pandemic. I’m the Vice President of the Stitt Feld Handy Group, and at the Stitt Feld Handy Group, we do a number of things. We offer training on negotiation, mediation, and conflict resolution, how to have difficult conversations, and deal with difficult people. We also provide services to our clients, mostly around workplace issues. That can include workplace mediation for people who may be having a dispute in the workplace or workplace restoration when there’s a team and maybe they’re looking for ways to function more effectively. We also provide coaching and a variety of other support services.

Like many of you, we’ve transitioned to offering our services online and remotely. We now offer virtual instructor-led training, which is essentially live training—just done online. That includes role plays and exercises, all conducted online. We now also provide our mediation services and coaching services online as well.

Our Purpose

Whether we’re offering training or services, historically, we were doing it all in person. But again, like many of you, we’ve had to transition to doing that online. Whether it’s online or in person, mediation or training, our purpose is always the same. Our purpose at the Stitt Feld Handy Group is to try to help people live and work better together.

These days, living and working better together are presenting some unique challenges. So one of the things that we decided amongst ourselves—when we started to work remotely and when the pandemic occurred—was to try to find additional ways that we might be able to reach out to people and meet our purpose of helping people live and work better together. One of the ideas we came up with was the idea of offering short, free webinars that would hopefully provide people with some relevant information and some tips and techniques that would be helpful as we all navigate these challenging and choppy waters.

When we thought of the idea of Expert Corner, what we hoped to do was to draw upon the expertise within our own organization and within our broader network of people. One of the first people who came to our minds was Doug McLeod. Doug was introduced to us many years ago when he took a workshop on negotiation and mediation with us. He’s here today because of his deep expertise in labor and employment issues.

Doug is the founder of the McLeod Law Firm, which is a Canadian labor and employment law firm. He’s got almost 30 years of experience in the field, and in fact, in 2018, he received the Award of Excellence from his colleagues at the Ontario Bar Association’s Labor and Employment Law section—a pretty significant accolade from your peers.

Doug’s Background

The other thing that’s notable about Doug, including the breadth and depth of his experience, is that Doug and his associates provide advice and representation to both employers and employees. For those of you familiar with the field, you’ll know it’s unusual to come across lawyers who have expertise representing both sides—and therefore understand the challenges from both perspectives.

Doug also writes a blog, which I’ve found to be very informative. It’s succinct, clearly written, and when you’re looking for information through complex situations, it can be very useful. These are just some of the reasons we felt Doug would be a great person to include in our expert series. We were very grateful when he agreed to contribute his expertise through this webinar.

In a moment, I’m going to invite Doug to join me, but I just want to deal with a couple of logistical things about the webinar.

Logistics

In addition to Doug, two of my colleagues are providing terrific assistance to make this webinar possible. Jason Stead is going to be behind the scenes, monitoring the questions you send in. If you have a question, you’ll notice at the bottom of your screen there’s an icon with a Q&A symbol. Please click on the icon, and a window will open where you can type in your question. It will go to Jason.

We then encourage you to close your question window so you can continue to watch the webinar. What Jason is going to do is read through the questions—because we have a very large audience today—and try to identify themes that might be relevant to a broad group of people. Please note: your question may not be worded exactly as you submitted it, because it may be blended with related questions, but your question will hopefully still be submitted to be answered by Doug today. We’ll do our best to have Doug answer as many questions as possible, though time will be somewhat limited.

We also have the assistance of Elizabeth Jamieson. Elizabeth is handling all the technical aspects behind the scenes. The fact that you can see me, hear us, and submit questions is all thanks to Elizabeth, who will be helping us throughout the webinar.

At 11:45, just as we conclude the webinar, there will be an opportunity to participate in a very short poll. The purpose of the poll is to help us understand a little more about the audience and what topics you might want us to address in future webinars. At the moment, we’re planning our next webinar for July 14th at 11:00 a.m. We’ll obviously send out more information, but the focus will be on how to have difficult conversations related to COVID—whether that’s speaking to someone about maintaining physical distance, requesting they wear a mask, or any of the specific kinds of difficult conversations that we might now need to have.

Also, at the end of the webinar, we’re going to send out a resource sheet…

Resources

Everybody who attended today will, we hope, receive the resource sheet within the next day or two. We try to design the resource sheet to include information that’s been addressed in the webinar, as well as additional information. We’ll make sure that gets out shortly.

Lastly, we’ve invited Doug because of his terrific expertise in this area, but please note that what he’ll be providing today is legal information. He’s not in a position to provide legal advice based on the brief questions that people are submitting. So if you do need legal advice, we would encourage you to reach out to Doug directly, or to other lawyers who have employment expertise, to retain them and receive legal advice. The focus of this webinar is on sharing legal information.

Doug

On that note, I am going to invite Doug to join us. Good morning, Doug—there we are. Good morning, nice to see you, and I’ll just unmute you for a moment so you can say hello. There you go.

Good morning, and good morning to your participants. Thank you.

Okay, so I just thought, Doug, maybe I would start with a sort of general question. I was thinking this morning that there have probably been health and safety issues in the workplace as long as there have been workplaces. There probably wasn’t health and safety legislation, but there were health and safety issues as long as there have been workplaces.

Of course, the focus these days is on health and safety issues presented by the pandemic, and particularly now that people are going back into the workplace and workplaces are reopening. So I was just wondering if you could talk—just as a sort of starting point—about where people might find information around what the standards should be as they return to the workplace.

OSHA

Sure. The main health and safety law in Ontario is called the Occupational Health and Safety Act—or OSHA. Every jurisdiction in Canada has one, and in the States, the same thing. As you alluded to, it’s been around for a long time. There are 26 regulations underneath the Act. The Industrial Establishments Regulation is probably the one most people listening are familiar with.

Now, of course, OSHA does not contemplate COVID, so there’s nothing specific in the legislation right now. As of yesterday, the Ministry of Labour, which administers OSHA, indicated it had inspected almost 11,000 workplaces since COVID broke out. There have been over 66 orders issued to comply with one section of OSHA or another, and they’ve issued 23 stop-work orders. So the Ministry of Labour has been very busy since COVID hit.

The Ministry also provides some really good resources, which I’ll quickly refer to. On their website—if you go to the Ontario Ministry of Labour website—they’ve got a section called “Resources to Prevent COVID in the Workplace.” There, you’ll find posters you can download and print, as well as sector-specific guidance for over 100 sectors in the economy. If you haven’t visited that website to look at the guidance for your sector, please do so.

One reason for that is under OSHA, an employer has an obligation to take every precaution reasonable in the circumstances for the protection of workers. At a minimum, that would include being familiar with those sector-specific guidance sheets.

Yesterday, the ministry also published something very valuable called Developing Your COVID-19 Workplace Safety Plan. Here are the six questions they cover:

This was just released yesterday—it’s on the Ministry of Labour website. I encourage everybody to take a look if they haven’t already.

Public Health Ontario also has a lot of really good resources online. If you Google “Public Health Ontario COVID-19 public resources,” you’ll find helpful material that can be applied in the workplace as well.

Work Refusals

It sounds like those resources would be great places for employers to start in order to be informed and meet their requirement to take every reasonable precaution in the circumstances to protect employees.

Some of the questions we received in advance were from employees saying, “What if I return to the workplace and I don’t feel safe?” Maybe they feel the employer hasn’t met the standards, or something’s going on and they feel unsafe. What would happen in that circumstance?

There is a provision in OSHA that deals with work refusals. It’s been there a long time, and it’s basically a two-step process.

If an employee at work feels they’re exposed to a health and safety risk, they can put up their hand and say, “I don’t feel safe.” At that point, the employer must conduct an investigation into the safety concern the employee has identified. If there’s a Health and Safety Representative in the workplace, they must be involved. If there’s a Joint Health and Safety Committee, they must be involved as well.

At the end of the investigation, the employer either agrees with the employee and addresses the concern, or disagrees with the employee. If they disagree, the employee can escalate the issue by contacting the Ministry of Labour. The Ministry will send an inspector to conduct an independent, objective investigation into the employee’s concerns, and the inspector will make a decision.

So yes, an employee can trigger that work refusal process if they feel unsafe.

Pay During Work Refusal

What happens in terms of employee pay during that time—during the work refusal and while the investigations are being completed?

During both stages of the investigation, the employee is removed from the part of the workplace they feel is unsafe, and they are paid during that investigation process.

You said “part of the workplace that is feeling unsafe”—so one option might be for the employer to relocate the employee to a different location or workspace while the existing space is investigated?

Yes. The typical situation is something like a machine. If an employee normally works at a machine and it’s not guarded properly—or there’s some other concern—they are removed from that area and placed elsewhere in the workplace.

Mask Wearing Policy

One of the questions we received was: What is the employer’s ability to enforce mask-wearing for safety?

As you may know, the Premier yesterday said that while masks aren’t mandatory, he strongly recommends that people wear masks when they can’t socially distance or are in places where they’re more likely to spread the virus. So that’s the public health guidance.

Beyond that, an employer has the authority to implement reasonable rules. Under the requirement to take every precaution reasonable in the circumstances, if they decide to implement a mask-wearing policy, they can do so.

If an employee refuses, the employer—hopefully—can convince them why it’s necessary. It’s about protecting others in the workplace, not just the person wearing the mask. If the employee still refuses, the employer may, in the right circumstances, discipline them.

At-Risk Workers

Another question: How should we handle workers in the government-identified at-risk group—those particularly vulnerable to COVID?

I’m not aware of any specific requirements, but an employer does have a duty to accommodate a disability. If an employee goes to their doctor, and the doctor provides a note saying the employee has an underlying health condition and recommends certain accommodations, the employer must respond to it—just as they would to any accommodation request.

Refusal to Return

When an employee refuses to return to the workplace—not because they entered and felt unsafe, but because they say, for whatever mix of reasons, “I don’t feel safe coming into the workplace, so I’m not coming at all”—how should that be handled?

A general refusal without any reason is difficult to deal with. If there’s no good reason, then you could take the position that the person has quit. One of your responsibilities as an employee is to show up for work, and unless you have a good reason for not coming, it could be considered a resignation.

Another approach would be to say, “We’ve directed you to come to work, and you haven’t, so we’re going to discipline you.” What I would do is ask the employee why—why won’t they come to work? Do what you can to find out the underlying interest and the reason for their position. A bald “no” isn’t that helpful. I would start a difficult conversation with them and find out why they’re taking that position.

I note that there have been issues come up under the CERB regarding whether people are eligible if they’re recalled to work and don’t return. One of the government ministers, Wayne Easter, was asked about this. He said that although there’s nothing in the legislation directly addressing it, his view—and the government’s interpretation—is that if you’re recalled to work and there’s no good reason not to go back, then you won’t get the CERB. By analogy, you could argue the same: if public health authorities have said it’s safe to go back to work and you choose not to, then you are resigning. But I think most people don’t generally refuse to work—especially if they’re not getting paid—unless there’s a reason. So I would really encourage employers to find out what’s going on.

Unpaid Leave

Would one option be to treat it as an unpaid leave? That could be another way of approaching a situation if the person’s not coming back for some reason and needs some time.

If they gave a bit more information about their concern and it turns out they just need a relatively short period before they’re willing to return, then a leave of absence is something you could offer as an alternative.

Masks

What if the person says they can’t wear a mask either for health reasons or religious reasons?

As mentioned earlier, if it’s for health reasons, they would require a doctor’s letter indicating that mask-wearing should be accommodated. The same would apply for religious reasons. There are certain religions that prohibit wearing face coverings, and employers have a duty to accommodate on the basis of religion.

Getting to Work

Some concerns might not relate to the workplace itself, but to getting to the workplace—such as taking public transit. How can an employer address that?

A lot will depend on the length of the commute. For example, the City of Toronto is increasing bike lanes and encouraging biking as an alternative to transit. Walking is another option. But if someone lives far away—say, they work downtown but live in Oakville—that’s a long bike ride or walk.

Again, the same analysis applies. If public health authorities say it’s safe to take public transit and safety protocols are followed, then refusing to commute could be viewed as abandonment or insubordination—unless there’s a valid legal reason. Generally, an employer is responsible for health and safety in the workplace, not getting to the workplace. Employees are responsible for arriving at work, and unless there’s a good legal reason for not showing up, the employer could consider it a resignation.

Transportation Between Work Locations

What if employees are required to travel between multiple locations as part of their job?

Normally, people use a car for that. But if the employee is expected to take public transit between work sites and they have an underlying health condition that prohibits this—and their doctor supports the claim—then the employer must accommodate. Otherwise, if it’s always been part of the job and public health authorities say it’s safe, then the employee will likely have trouble justifying refusal.

Return to Work

Before transitioning to employer responsibilities for remote workers, is there anything else to touch on regarding health and safety and return to work?

Yes. I think it depends on where we are in the curve. If there are 600 new cases a day, people who are health-conscious will be more hesitant. If cases are under 200 or approaching zero, people will feel better. Governments take different approaches: some jurisdictions are more aggressive in reopening and may be ahead of public comfort, others behind. If a government is pushing for reopening and an employee is more health-sensitive, it can take time before they feel comfortable returning.

Assuming things improve, many people may need a short adjustment period. And as an employer, if this is a valuable contributor to your team who’s always been reliable, you may want to give them time to become comfortable again.

It’s an adjustment. Those of us working from home feel pretty safe there. So re-entering a workplace—with more people around and more issues—will require a transition for many.

Whether someone returns may also depend on whether remote work is possible. If they work on a manufacturing line, there’s nothing they can do from home. But if they’ve been working remotely successfully, and can continue, then allowing them to work from home in the short term may not be a bad thing. It also helps employers limit how many people return at once.

Some organizations are bringing back half the team one week, the other half the next—limiting exposure and the number of people in the office at any time.

Temperature Checks

If an employer wants to include temperature checks as part of their safety plan, are there parameters to consider?

That’s a good question. The first thing that comes to mind is employee privacy rights. A temperature check isn’t particularly invasive—it’s not a saliva or blood test. While it’s unclear whether employers can require it, I don’t know why anyone would object to it.

Hotels

A question came in: what if employees are required to stay at hotels? I’m assuming this falls under having to assess the risk associated with staying in a hotel. If you have to stay in a hotel as part of your work, then I guess it would be the same as we were talking about before. If the hotel is open and has the requisite safety protocols that the Ministry of Labor has prescribed in their guidelines, I don’t see why an employer couldn’t do that.

Remote Work Equipment

Let’s transition for a moment to looking at the requirements that employers have for their employees while working remotely. We had a couple of questions come in about whether the employer is required to provide computer equipment, desks—just the equipment that one might need to work from home. What is the employer’s obligation in terms of setting up the location for remote working?

Well, under the Occupational Safety Act, there are certain personal protective equipment requirements that an employer must meet, but computers and computer chairs aren’t among them. Generally, an employee is not required to provide equipment necessary for the job. Unless there’s something in the employment contract that says the employee will provide their own computer, phone, etc., I don’t think you could force an employee to buy those things. You do see employment contracts where employees have to provide their own car or cellphone, and that’s specifically stated in the contract. But asking an employee who’s never had to buy equipment to now purchase a laptop or phone—I don’t think so.

Requesting Equipment from Employers

What about the flip side? What if the employee is saying, “I’d like my employer to provide me with an ergonomic chair or a special stand for my computer,” and is asking the employer to ensure they’re safe in their home workplace?

There’s a section in OSHA that says OSHA doesn’t apply to private dwellings, and there’s mixed case law on the applicability of OSHA to private homes. But quite apart from that, if the employee is working from home and develops a work-related injury, then there’s potential liability under workers’ compensation legislation. For example, if someone is sitting at their computer all day and gets neck problems, carpal tunnel, or back issues due to improper furniture, then the employer could face liability. So it’s in the employer’s interest to do what they can to ensure the employee has a safe workplace setup at home.

Productivity and Cost Issues

And beyond the legal issues, there are productivity issues as well. If you want employees to work effectively from home, ensuring they have proper equipment could be significant. People have also asked whether that would extend to the employer paying for internet and phone. It sounds like these questions are “live” in the sense that OSHA doesn’t specifically state the employer has to provide those things.

Again, an employee normally doesn’t provide the IT needed to get work done. If the employer wants to use the employee’s IT at home, I guess the roles reverse—the employee could say, “I don’t want to use my IT.” So I don’t think it’s an occupational health and safety issue—it’s a question of who bears the cost of expenses incurred from a home office. Unless the employee has agreed to assume those expenses, it’s going to be hard for an employer to require them to pay.

Remote Work Requests

Does that change if it’s the employee who is requesting to work from home? Say the workplace has reopened and the employer says, “Please come back,” but the employee says, “I have some concerns; I’d prefer to work remotely.” Does that impact the employer’s obligations around equipment?

Depending on the facts, you’re now into a negotiation. At that point, the employer could say, “We want you back at work, and if you choose to work from home, you’ll have to pay these costs. If you came into the workplace, we wouldn’t be incurring those expenses.” So the employer can put conditions on remote work if it’s offering that as an option.

Concerns About Sick Co-workers

One final question: what if a co-worker is displaying symptoms but claims it’s just allergies or is simply waiting around until the end of the day for a ride home? If you’re concerned a co-worker may be sick, what should an employee do?

If they genuinely believe the person may have COVID—due to a cough, temperature, or other symptoms—then, if it were me, I’d go to my supervisor and say, “This person is exhibiting symptoms; I’m not comfortable being near them—please deal with it.” If the supervisor doesn’t respond appropriately, then the employee could exercise their right to refuse work. Even if it’s just an hour or two before the end of the day, a work refusal should get the job done.

Why Negotiate

Several things came up in the conversation—work refusal, employees preferring not to wear masks, or refusing to return to work. All of these are situations where the advice has been to have a conversation. It may be a difficult conversation or a negotiation to find a solution that works for both the employee and employer.

Sometimes people feel uncomfortable with the idea of negotiating in the legal realm. There’s a sense of “I have rights” and “I should be protected.” Employers may think, “It’s my right to require the employee to return—why negotiate?”

What are your thoughts on why it’s important to try to negotiate a solution directly?

Assuming both sides know their legal rights, the question becomes: do they want to assert them, especially in a litigious situation? Most employer-employee relationships are ongoing and indefinite—you want to take a longer-term view. Having that conversation to figure out whether there are options to meet both parties’ needs is important.

This is COVID—none of us have seen this before. People have genuine health concerns that may not seem reasonable to others—but they’re real. Some people may be prepared to stay home and not earn money, or even give up their jobs because they feel so strongly. And although that may result in a no-cost termination to the employer, is that what the employer really wants?

If this situation might resolve in a few months, is asserting strict legal rights really where you want to end up? Maybe not.

Where You Want to End Up

Where we want to end up, I think, is a workplace that’s safe—where people feel comfortable, where the work can be done, and where we achieve productivity again. All of those things are a shared goal in most workplaces. These are very uncertain times, and it’s hard to know how best to do that. So I think being informed of our legal rights is the important starting point, and then, as you’ve said, try to have some conversations and come up with options that may meet the legitimate interests that both sides have—because it’s choppy waters these days. We’re all trying to figure out how to go forward.

We’re just coming to the end of our time, so I wanted to again check in and see if there was anything else you wanted to add that we haven’t touched on.

No—just to reinforce my last point, which is: most people are not going to refuse to come to work, particularly if they’re not getting paid, unless there’s something there. So, you know, the employee may not want to share it with the employer, but that’s counterintuitive to me. It suggests that people may have enhanced health sensitivities that don’t make sense to you or me—but they make sense to them. Those sensitivities will likely dissipate as things continue to improve. So just take a medium- to longer-term view of these things.

Some employers are very quick to label situations as insubordination or voluntary quit, and I think that’s a very short-term view in this kind of scenario.

Are you saying it’s counterintuitive, in your view, for an employee not to share a little more information to help the employer understand why they have the concern?

No—it’s counterintuitive for someone to stay at home and not get paid when the alternative is to go to work and get paid.

I see. Okay.

Particularly if they’ve been living on CERB for the last three months—most people are feeling the financial pain of not working, so to continue that and make that pain worse… that’s counterintuitive to me.

I see. Okay.

Thank You

Well, I started this morning by saying how grateful I was that you were willing to join us for this webinar and share your expertise, and I remain really grateful. I know when we did the last webinar together we had lots of feedback from people saying they found it really helpful. So I just want to thank you—you’ve been very generous with your time and expertise today. Thank you, I really appreciate it.

We’ll let you go now, and I’ll just invite the audience members to stay for the poll so you can give us feedback on topics you’d like to hear from us in the future.

Thanks again, Doug. Take good care.

Okay—so we’ll just have a poll. It’s going to ask you a couple of questions about yourself and a couple of questions about what you’d like to hear from us in terms of future webinars.

Just a reminder that, at the moment, our next webinar is scheduled for July 14th at 11:00 a.m., and the focus will be on how to have difficult conversations that are related to COVID.

Elizabeth will now transition us to our poll. And thank you for joining us.

You.