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Continuity Podcast: Employment & Labour in the Time of COVID-19

Continuity Podcast: Employment & Labour in the Time of COVID-19
April 6, 2020

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This is a novel environment for many employers, and I think it is important for employers to continue to check in regularly with their employees who are working from home during this time, especially those who may not otherwise be used to or accustomed to working from home. 

Daryl Cukierman, Partner in the Blakes Employment & Labour group
From occupational health challenges to cyber risks, privacy and work-from-home policies, Blakes Employment & Labour lawyers Daryl Cukierman (Toronto), Natalie Bussière (Montréal), Birch Miller (Calgary) and Michael Howcroft (Vancouver) discuss the key issues that Canadian employers are facing during the unprecedented COVID-19 pandemic.

Transcript

Mathieu: Hi, I’m Mathieu Rompré from the Communications team at Blakes, and I’m here with my colleague Peggy Moss.

Peggy: Hi, welcome to the Continuity podcast.

Mathieu: We’ve all been reading a lot about COVID-19 and have felt the impact on just about everything, from public health to politics to the complicated dynamics of working from home.

Peggy: So much to think about. On Continuity, we’re narrowing the focus. We will look at how Canadian businesses and their leaders are coping with the legal hurdles and driving forward in complicated times. And we’ll talk to the lawyers helping them — wait for it, continue and succeed.

Mathieu: But first, a cautionary note: this podcast does not constitute legal advice. You can call or email us for that. Second, in case you are wondering what you are getting yourselves into, here’s our commitment to you: we’ll keep it practical, we’ll stay business-focused because that’s what we know and what we do best, and we we’ll be candid, not alarmist.

Peggy: And here is your part: if we miss the mark, please let us know. Email or call us to remind us of the terms of this contract.

Mathieu: So, wash your hands, grab your ginger shooter and pump up the volume, we are about to kick things off with our first topic of the Blakes Continuity Podcast: Employment and Labour in the Time of COVID-19.

Mathieu: We’re joined by Daryl Cukierman, a Partner in our Employment & Labour group in Ontario. Daryl, I know you and the rest of the team have been really busy lately. Could you tell us about some of the most common questions you get from employers?

Daryl Cukierman: Sure, and thanks for having me join today. We have been seeing a wide range of issues as this is in a very fluid and unprecedented environment. I would say that the most notable issues have been:
  1. Whether to pay employees who have been unable to work due to COVID-19-related reasons, including those on self-quarantine. On that point, each case must be considered on its own facts, but generally, if the employee’s absence has been at the request of the employer, for example, a request for self-quarantine mandated by the employer following a return from a trip abroad, then it’s more likely the employer will be prepared to pay for such absence.
  2. I would say occupational health and safety considerations has been a very big piece, and in this case, namely ensuring that the employer is taking all reasonable precautions in the circumstances for the protection of its workers, being proactive and vigilant with health and safety walls ― so, put the employer in a good position in responding to any formal work refusals by employees.
  3. And more recently, determining if a client falls within an essential service or essential workplace in Ontario so as to allow it to remain open during this period. On that point, in Ontario under the Essential Workplace Declaration, tele-working and online commerce are certainly permitted at all times for all businesses and the rest of the list that has been put forward by the Ontario government has generally been viewed as being quite broad. But there are, of course, clearly many businesses that may not remain open during this time, and we have been working with clients to assess this list for their particular set of circumstances.
Peggy: Daryl, when we’re talking about those employers who have stayed open, what are the biggest concerns you’re hearing from HR directors and others who are trying to figure out how to keep working in this environment?

Daryl: I’d say the biggest item that we’re dealing with and hearing about is on the occupational health and safety front, certainly one of the biggest items would be on that front.

As I mentioned earlier, employers should be taking all reasonable precautions in the circumstances for the protection of their workers. Now, this is codified as a general requirement in the Ontario Occupational Health and Safety Act and has really become a core guiding principle for employers to follow in the COVID-19 environment.

In practice, this means increasing the frequency of sanitizing or cleaning workstations or high-traffic areas, encouraging physical distancing between employees in the workplace, avoiding or significantly eliminating in-person meetings, so moving to videoconference or telephone calls, wherever possible, providing extra hand-sanitizer stations and encouraging employees to use them frequently. Putting up additional signage in the workplace reminding people to wash hands and signage or policies reminding employees to avoid attending work if they are experiencing any symptoms associated with COVID-19.

Mathieu: And what’s the big risk for employers on the working-from-home front?

Daryl: Well, this is a novel environment for many employers, and I think it is important for employers to continue to check in regularly with their employees who are working from home during this time, especially those who may not otherwise be used to or accustomed to working from home. And, so, that basically means making sure they remain engaged, making sure they have proper contact information if they do have questions or concerns, so that might be their HR director or manager, their supervisor, their manager.

Teleconferences or regular phone calls are also naturally a good way to check in, and it’s also a good idea to remind employees that all company policies continue to apply even while working from home, and so this would include policies around, for example, confidentiality, non-disclosure, IT security.

So, we’re recommending that employers emphasize these points as necessary or as they see fit to make that work-from-home environment flow properly and smoothly.

Peggy: Thank you, Daryl. Our clients across Canada face a range of issues, so we are going to talk to lawyers in a few different jurisdictions starting with Alberta, where we’ll talk with Birch Miller, and B.C., where we’ll be joined by Mike Howcroft. Birch, can we start with you? What are you hearing from clients in Alberta?

Birch: Thanks, Peggy. So, Daryl mentioned that adhering to employer policies around confidentiality and IT security, and I just want to build on that. Remote working can introduce weaknesses as a result of employees connecting to networks by unsecured connections, using their own personal devices, or even having physical copies of company information at home. And what we’ve been doing is advising employers with respect to taking steps to ensure all remote connections are secure, ensuring antivirus and malware software are up to date and reminding workers about best practices regarding remote working, such as using Wi-Fi networks and safe-guarding sensitive information.

Peggy: Birch, thank you. Are you talking to clients about similar issues on the work-from-home and remote-working front, Mike?

Mike: I agree with Daryl and Birch that data security is one of the important issues with working from home. But I think there is also a practical component in that, in addition to making sure your computer is secure, you need to make sure your workplace at home is secured as well. While you need to make sure you don’t get hacked, you also need to make sure that you’re conducting work in a private space so that your family and people you live with aren’t necessarily accessing confidential information.

I also think it’s important for employers to remember that the rules around hours of work and other employment standards issues continue to apply if you are working from home. So, ensuring you’re monitoring employees and that they’re not working excessive hours or otherwise contravening employment standards requirements is also something employers need to consider when they are setting up a work-from-home arrangement.

Peggy: What are some of the concerns you are hearing from clients in Alberta?

Birch: In Alberta, the COVID situation has come during a time when many of our clients are also facing historical lows in oil prices. So, in that regard, clients in the energy as well as other industries are asking about strategies to preserve the business while trying to limit negative consequences to the workers. So, in that regard, a frequent question we have been asked is: “How can contemporary layoffs be coupled with government benefits to employees?”

Also, similar to Daryl in Ontario, we are speaking with clients about the Alberta government restrictions on workplaces. Just last week on March 27, the Alberta government required the closure of certain non-essential businesses and, for other businesses, implemented restrictions, such as limits on groupings of more than 15 people, social distancing of two metres and enforcement of hygiene procedures and processes to ensure ill workers do not come to visit the workplace. These restrictions have generated a lot of discussions with our clients and will continue to do so.

Peggy: Mike, are you hearing issues similar to that in B.C.?

Mike: Yes, Peggy. In British Columbia, we have two categories of businesses. The businesses that are being impacted directly by the COVID-19 crisis are either required to shut down or have seen a significant drop in business operations that have required looking at layoffs, wage reductions or hours reductions to manage the financial impact of this crisis. For other clients, they are trying to manage either moving their employees from an office environment to working from home or, where they have ongoing operations, trying to keep these employees safe in the workplace and comply with the various occupational health and safety requirements in light of the unique circumstances surrounding COVID-19.

Peggy: Okay, so what are some of the concerns you are hearing from HR directors and others who are trying to figure out how to work best in this environment?

Birch: In addition to the point that I heard from Daryl, I would note one of the other points we’re hearing from my HR directors are concern for their employees: concern with respect to stress and mental illness. Employees are, of course, dealing with childcare concerns, financial stresses, concern for their health, the health of their family members and general worry for the state of the world and the economy. These are worries that they are not necessary dealing with on a day-to-day basis before this pandemic.

So, these stressors can be exacerbated by an employee radically changed work environment ― working from home or perhaps a different office environment ― and HR directors are looking for ways to connect with their employees, communicate with support resources and offer accommodation where needed.

Peggy: Mike?

Mike: Thanks, Peggy. One of the unique issues that I’ve seen arise from human resources directors in British Columbia is that British Columbia, like Alberta, has quite strict privacy requirements and many of my clients have been trying to manage those privacy requirements against the occupational health and safety issues with regards to keeping workers safe. For example, I’ve had many questions about what a client should do if an employee reports that they have tested positive for COVID-19, which would normally be employee personal information that should not be disclosed to co-workers. But in these unique circumstances, they may have to balance that privacy right with the requirement to keep other employees safe.

Mathieu: Thank you, Mike. And to wrap up this employment and labour episode of our Continuity Podcast, we are heading to la belle province to talk to Natalie Bussière. She is a Partner at Blakes in Quebec. Natalie, what about the clients in Quebec? Same concerns?

Natalie: Basically, we’re faced with the same types of questions and issues. I may add that we noticed certain additional concerns in the industrial sector, very likely because sometimes the work organization is slightly different ― people are closer together. So, for example, in terms of requesting that employees not come to work after a trip abroad, for example, some clients were quite quick to react and also implement measures to make sure that people did not come to work. So, the interest to pay them to stay at home was greater, I think, because they wanted to avoid contamination in the workplace.

Same thing with respect to the perceived risk by certain employees. The crisis developed right after the school break in Quebec. People know that a lot of people travel abroad during that period of time, so a lot of questions were raised by other employees concerned about the return to work of some of their colleagues that they knew had travelled abroad. So, it actually triggered quite a strong reaction by employers who wanted to make sure that (a) they were protecting their workforce, and (b) that they ensured that their continued operations were not in jeopardy.

Mathieu: Natalie, we heard recently that community spread is more prevalent than contamination due to travel. Does this raise new concerns for your clients?

Natalie: Yes, and it brings me to speak a bit more about the health and safety concerns. Because we discussed, of course, what I would call the internal measures, so, for example, reminding employees to wash their hands, to keep a reasonable distance from their co-workers and the other measures that we discussed ― asking employees to stay at home if they have symptoms or if they have travelled abroad during the recommended quarantine. But some employees have expressed concerns regarding suppliers, visitors, the delivery of materials or even basically envelopes, so whether or not they could be contaminated. So, some clients have implemented measures to remind visitors to adopt certain measures in order to ensure that there was no contamination either by the physical persons or by whatever they were bringing into the workplace. So, I think this came more to the forefront because of the fact that people now know that it is not only what I would call a specific population that may spread the disease but whoever was in contact with the disease, who can be anybody now.

So, one other thing that I would like to mention is the evolution of priority services in Quebec. As my colleague mentioned, in some provinces, including Ontario, the government has enacted a list of enterprises that are authorized to continue their operations despite the current situation. In Quebec, the government has done this, and this list is updated on a regular basis. So, we recommend, of course, that clients keep themselves informed as to the recent developments. The idea, of course, is to ensure that what I would call “society” can still function and that primary services are given to the population.

What we have seen as well is that, of course, because employees in those industries are called upon to continue working, those industries are quite sensitive to the employers taking measures to make sure that they can still continue to operate safely for the employees to, of course, avoid contamination but also to ensure that the employees will keep on coming to work and feel like they are safe in their environment. As Daryl mentioned, it is a positive obligation imposed on employers to make sure that their workforce is not put into a work environment that is unhealthy or that can create risks for their health and safety.

Mathieu: Thank you, merci, Natalie. That’s it for today. Thank you for listening. We hope you enjoyed the first episode of this podcast.

Peggy: Over the next few weeks, our topics will include issues impacting a wide range of sectors and industries. Please check out the Blakes COVID-19 Resource Centre for updates and let your friends know where to find us. All of us at Blakes wish you and your loved ones good health.

Mathieu: Until next time, be well and stay safe.
 
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About the Blakes Continuity Podcast
Continuity examines how COVID-19 is impacting business in Canada, and shines a light on the path forward. Lawyers across our offices discuss the unique challenges, risks, legal developments, opportunities and government policies emerging in a time of unprecedented disruption. Want to hear about a particular topic? Reach out to our communications team at communications@blakes.com.

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