Preparing for Employees Returning to Work

June 22, 2020

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Re-opening First Nations workplaces and bringing back employees requires careful planning. There are legal requirements to have workplace safety plans in place to address workplace health and safety issues, and there is a variety of human resources considerations for reintegrating employees back into your workplaces.

By working through the following considerations, you will be able to develop a clear plan of action for the full reintegration of your employees. Although thes considerations are based on the best information available at the time of writing, COVID-19 conditions, regulations and programs change often so you are recommended to check the links provided and discuss options with a human resources advisor.

Considerations:

Gather a team to plan the return to work, including Human Resources, IT, health & safety staff and senior management to develop a Safety Plan and begin the process of planning for employees to return to the workplace. Start by considering:

• What interim workplace policies are in effect?

• What are the COVID-19 impacts on employees and specific workplaces?

• Can/should all workplaces reopen at the same time?

• Who has been working from home, and what has worked well?

• How will we involve employees at all levels in identifying workplace risks?

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Address COVID-19 Safety Planning:

First Nations are governed by the Canada Labour Code Part II: Occupational Health and Safety, and are required to develop a hazard prevention program: https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/notice-covid-19.html#h2.6

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• Many Nations are also registered with WorkSafeBC and therefore fall under BC’s Occupational Health and Safety (OHS) legislation and regulations. WorkSafeBC requires employers to develop and post a COVID-19 Safety Plan before re-opening the workplace. The following link lays out the steps in developing a Safety Plan: https://www.worksafebc.com/en/resources/health-safety/checklist/covid-19-safety-plan?lang=en

• Both sets of regulations require the same basic steps:

  • Assess the COVID-19 risks in the workplace.

  • Implement measures to reduce those risks for staff and visitors.

  • Develop policies to outline safety measures.

  •  Implement communication plans and training for staff and visitors.

  • Monitor the workplace and update the plan as required.

  • Address risks from resuming operations.

Select employees to return to work:

• Develop a priority list of who should return and when – essential services, operational needs, budgets, etc. (note: it is easier to return people in phases than all at once).

• A plan for all employees is not required at the outset. You can simply document the selection criteria used to make the decisions (e.g. essential services, risks, operational needs, etc.).

• If the selection criteria consider issues such as past performance, versatility, etc., you cannot discriminate against certain types of employees (e.g. based on age, disability, etc.) .

• Consider which staff can effectively continue to telework and which need to be in a specific physical location.

•  If your return to work plan is based on essential services, you cannot simply lay off employees that you consider to be performing poorly. So identify the critical positions (not persons) first. If there are issues with a specific employee you need to address this as a performance issue, which will require good evidence, such as poor performance reviews, written warnings, etc.

• Temporary layoffs are an available option, but it is advised that you discuss this with a human resources advisor as there are some associated risks. For example:

  • Obligation to provide notice or pay in lieu of notice continues.

  • There are differences between the Canada Labour Code and the BC Employment Standards Act.

  • In the case of temporary layoffs, recalled employees have the right to the same position/wages/responsibilities.

  • Temporary layoffs that exceed the statutory limits are deemed to be terminations, and therefore require notice or pay in lieu of notice.

• If you determine that you do not need a particular position, you can terminate an employee in that position. In this situation, it is recommended that you speak with a human resources advisor. Generally speaking, these are common considerations:

  • Employers need to consider whether this employee can be effectively used elsewhere.

  • Employers must provide 2 weeks of termination pay, plus severance required under the applicable law or employment agreement. (e.g. Canada Labour Code provides 2 days/year of service after completing one year).

  • For long-term employees, providing additional severance can protect employers from lengthy appeals.

Employees with COVID-19 symptoms are prohibited from the workplace, including:

•  Anyone with symptoms of COVID-19 in the past 10 days

•  Anyone directed by Public Health to isolate

• Anyone who has arrived from outside Canada or who has had contact with a person confirmed to have COVID-19 must self-isolate for 14 days and monitor their symptoms

Decide when employees should return to work:

• Has your building been properly cleaned and retrofitted? (see the NmTC “Checklist for Preparing Facilities to be Re-opened”)

• Will you phase the reopening?

• Will you use staggered work schedules or potential work-shared reduction in hours to provide for physical distancing?

• Decide on how much notice will you give recalled employees, and how will they be contacted

• Have first aid attendants been provided with the Occupational First Aid Attendant COVID-19 protocols? (see: https://www.worksafebc.com/en/resources/health-safety/information-sheets/ofaa-protocols-covid-19-pandemic?lang=en)

 

Develop a vision of your workplace’s “new normal”:

• Will there be changes in work hours?

• Will there be changes in duties? (If so, this requires a new job description)

• Will breaks be staggered to provide safe distancing?

• Will staff be provided (or mandated) hand-washing breaks staff?

• How will you support employees whose stress/anxiety etc. has worsened due to the pandemic?

• Will staff food-sharing opportunities continue?

• What will be done to ensure the safe use of coffee stations or kitchens? Will these services be suspended or ended? Will this service end for staff and visitors?

• Will it be necessary to change cleaning schedules, or provide checklists for janitorial staff to sign-off?

• Will staff be encouraged or required staff to keep their own areas clean? If so, how will they access cleaning supplies?

• Will an individual be assigned to administer on-site training and distribution of Personal Protective Equipment PPE? (e.g. if it has been deemed to be required because certain employees must temporarily work in closer quarters – Note: employees cannot be expected to wear PPE all day long.)

• Will an individual be assigned to be a pandemic liaison that works throughout the organization spearheading the safety planning, conducing inspections and assuring that protocols are followed?

 

HR planning activities involved in bringing employees back:

 

• Employers may want to implement screening questionnaires for all staff and visitors that ask basic questions, such as:

  • Have you had any COVID-19 symptoms in the past 10 days (fever, child, new or worsening cough, shortness of breath, sore throat, new muscle aches or a headache)?

  • Have you arrived from outside Canada within the last 14 days?

  • Have you been in contact with anyone with COVID-19?

  • Depending on how these are answered, individuals may be blocked from entering the building. You may want to discuss this with a human resources advisor first.

• Look at policies that were created in the ‘heat’ of COVID-19 and determine which changes are permanent Human Resources policy changes and which are temporary.

• Confirm accuracy of sick, vacation and time banks for all staff.

• Develop a list of policies that may be required, including:

  • Social distancing guidelines

  • Travel policies

  • Vacation leaves in the return period

  • Protocol for addressing requests to work from home

  • Bereavement policy

  • Complaint policy & plan to investigate complaints related to real or suspected exposure to COVID-19

  • Face covering policy

  • Changes to new hire orientations

• Written policies or guidelines specifically focussed on COVID-19 should be time-limited and have a process for renewal identified.

• How will the return to work plan apply to temporary, casual workers & contractors?

• For staff that are not returning from teleworking or returning only part-time, you might need to develop or update policies related to:

  • teleworking (e.g. employee workplace expenses, employer equipment, etc.)

  • confidentiality and cybersecurity agreements and protocols

  • occupational safety and health requirements (e.g. workplace inspections, ergonomics, equipment, etc.)

HR activities related to bringing people back from home offices:

• You may want to develop a signed agreement that all time and expenses incurred during the period that the employee worked out of the office have been satisfactorily addressed.

• Require a process/documentation for the return/inventory of employer-owned equipment.

• Identify if there are any cybersecurity issues to address.

• Confirm that all employer confidential information has been returned.

• Provide training on new policies and protocols for staff and managers.

• Consider staffing impacts due to ‘external’ issues such as public transit slowdowns, child care complications, etc.

How will you address an employee’s refusal to return to work?

This can be a complicated issue that should be discussed with a human resources advisor. But here are some considerations:

• Some cannot return because of:

  • Diagnosis or symptoms of COVID-19

  • Travel or commute impediments (e.g. transit troubles)

  • Child, dependent or senior care obligations

  • Membership in a vulnerable population (e.g. elderly individuals and those with underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma and those whose immune system is compromised such as by chemotherapy)

• Some prefer to not return:

  • Fear of returning to the workplace

  • Preference for teleworking

• You will need a process for approval of these requests to continue working from outside the workplace. Here are some considerations:

  • Is the request for a reasonable accommodation, health-related or legally required, or based on employee preference?

  • Make sure managers are trained on the policy and protocol and know who to send the employees to if there are questions or concerns.

  • It is recommended that you consider special accommodations for workers who are members of a vulnerable population.

  • There is likely to be increased requests for time off and reasonable accommodations, so you should develop a process for considering and approving these requests.

Employee Right to Refuse Dangerous Work

• Employers have a duty to ensure that a workplace is safe and healthy, and employees have a right to refuse dangerous work that puts themselves or others at risk (see the definition of “danger”: https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/062.html).

• In these cases, the employee must inform the employer immediately. The employer needs to investigate the situation and address potential risks.

• Employers are required to update their hazard prevention program to address COVID-19 hazards, involve employees in the updating, implement the changes, and provide necessary training (see: https://www.ccohs.ca/oshanswers/diseases/coronavirus.html for recommendations on workplace changes)

• The process for addressing an employee’s refusal to work is set out in the following: https://www.canada.ca/en/employment-social-development/services/health-safety/reports/right-refuse.html

• More information is available at: https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/notice-covid-19.html#h2.6

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If COVID-19 is detected in the workplace:

• Employees with COVID-19 symptoms in the workplace – even with mild symptoms – should leave the workplace immediately and contact 811 for further guidance related to testing and self-isolation. A protocol is needed so staff know how to report this departure, and how that information will be used and protected. It is also recommended that managers inform the community’s nurse or health practitioner so that they may follow up.

• Sick workers identified in the workplace should be asked to wash or sanitize their hands, be provided with a mask and isolated before being sent home. If the worker is severely ill, call 911 immediately.

•  If an employee leaves the workplace due to COVID-19 symptoms, disinfect any surfaces the employee may have touched, and consider whether to shut down the building until a deep clean has been completed.

• Consider how a positive test result will be communicated to other employees, considering privacy rights, the emotional impacts on the other employees, concerns around bullying, etc.

• It will be useful to have a plan to address a situation where an employee with COVID-19 symptoms refuses to leave the workplace. Here are some considerations:

  • Use a collaborative approach, reminding them that you have asked them to leave. Try to make them understand that their departure is necessary to maintain the health and safety of the entire workforce, visitors, Elders, etc. If available, remind them that they can use paid sick leave, vacation leave or whatever will address their concerns. 

  • If they still refuse to leave, you can consider treating them as a trespasser and potentially have them removed by an enforcement officer or terminated for insubordination (Note: these mechanisms should only be used as an absolutely last resort). Your primary duty under law is to provide a safe workplace for your employees.

Administration of employee benefits:

• If employees retained benefits while on COVID-19 related leave, you will need to consider whether to recover employee portions of the benefits.

• If employees lost benefits coverage while on COVID-19 related leave, you will need to provide re-enrollment opportunities.

• Check to see if there were any impacts on pension contributions and address them.

• Consider a policy to address vacation accrual during COVID-19 related leave.

• It may be advisable to consider flexibility or expansion of leave policies to address the unique circumstances of the pandemic.

Customers, vendors and visitors

• You may want to require anyone attending a workplace to complete a COVID-19 questionnaire before they are allowed to enter the building.

• Anyone attending a facility need to have a way to wash their hands, either by access to soap and water or with hand sanitizer stations.

• It may be useful to limit visitors to specific timeframes and/or limiting where visitors/deliveries are allowed to go in the building.

• Mail delivery and package drop-off should ideally happen outside the building. If this is not possible, there should be a clear process in place for receiving these packages and either cleaning them immediately or placing them in secure storage for 2-3 days before they are distributed to staff.

 

Meetings

• Consider whether face-to-face meetings are actually necessary or if they can be held via teleconference or a social media platform. If you must proceed with a meeting, consider the following:

  • Any potential participants with symptoms cannot attend in person.

  • Determine if fewer can people attend and ensure 2 metres distance between all attendees.

  • All attendees should have ready access to tissues and hand sanitizers.

  • All attendees, caterers, etc. should provide contact information so they can be informed if anyone in attendance displays COVID-19 symptoms after the meeting.

  • If possible, meetings could be held in an outdoor space or in large open indoor spaces.

Business travel:

 

• Develop a policy definition of “essential” business travel and limit non-essential travel.

• Fully explore travel alternatives (e.g. teleconferencing, social media, etc.).

• Do not send vulnerable employees on work travel to areas where COVID-19 is spreading.

• Issue hand sanitizer to employees who are about to travel.

• Employees returning from travel should self-monitor for symptoms for 14 days, and stay home and self-isolate if they develop even a mild cough or low-grade fever (37.3 degrees Celsius or more).

• Care should be taken to address employees’ fear of travelling.

Cleaning and Personal Protective Equipment (PPE)

• Personal Protective Equipment should not be required for all staff.

• Where staff cannot stay at least 2 metres apart, you may need to provide PPE. However, employees cannot be required to wear a mask all day. (Note: employers should not issue n-95 masks due to shortages in the health care sector).

• You may want to allow employees to use their own masks (including cloth facemasks and bandannas), but if so they should be informed that cloth masks are not respirators and be informed about their safe usage.

• You will need to determine if cleaning supplies be provided to employees and whether you will develop a protocol for cleaning around work stations (i.e. such as having employees do it at the beginning/end of a shift).

• How will you address shared items: staplers, hole punches, etc.? Will you remove them or have a protocol for handing off?

• If you provide coffee or catering services, staff and visitor mugs, cutlery, etc. may need to be disposable.

• Need to develop a protocol for tool handling and handing off distances (e.g. set it down, back up, and the other person picks it up).

• May want to develop handwashing protocols and perhaps provide specific handwashing breaks.

• Need to be sure to stock the workplace with sufficient hand sanitizer, facial tissues and sufficient cleaning supplies.

• Signs should be posted throughout the building, warning staff and visitors to cough or sneeze into an elbow, regular handwashing and hygiene, limited face-touching, etc.

• Increased cleaning is needed for high traffic areas and objects (common areas, door handles, light switches, bathrooms, other touch points, copiers, keyboards, printers).

• Safety training and communications should be provided to all staff.

• Regular cleaning of work vehicles – steering wheel, shifter, signal indicator lever, radio switch, door handles/openers, windshield wiper lever, etc.

 

18) Changes to hiring processes

 

• Employers may want to consider remote interview processes.

• It is acceptable to ask the COVID-19 questionnaire question and to screen applicants for symptoms, as long as all applicants are treated equally (e.g. have you had any flu-like symptoms or travelled in the past 14 days?)

• If a successful applicant later develops COVID-19 symptoms, you can delay the start date. If an immediate start is required, consider discussing withdrawing the offer with legal counsel.

• You may want to consider reducing or eliminating temporary hiring

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Sources and Resources: