Employer strategies for managing novel coronavirus risks in the workplace

COVID-19, also known as novel coronavirus, is a serious public health concern. Employers will be at the forefront dealing with a multitude of COVID-19-related issues, which could cause severe business disruptions. Employers are advised to prepare contingency plans to manage the COVID-19 novel coronavirus in North America.

Preparing for a potential outbreak in North America

Canada’s Public Health Officer tweeted on February 28, 2020 that Canadians should take steps to prepare for a wider outbreak of COVID-19. That is consistent with the World Health Organization’s (WHO) assessment earlier that same day that the global COVID-19 risk is very high, with more than 85,000 cases and 2,900 deaths reported amid the continuing global spread of the virus. This is also consistent with the fact that more than 60 countries have confirmed cases of COVID-19, some with publically stated or potential community transmission/spread.

Community transmission means the illness was acquired through unknown exposure in the community. In general, every country’s first strategy is containment. Containment includes aggressive steps to find everyone who has come into direct contact with an ill person, also known as contact tracing.

Containment becomes harder as more countries have community transmission. At some point, a shift from containment to trying to mitigate the situation can be appropriate.

At this point, there is no vaccine to protect against COVID-19. The U.S. Centers for Disease Control and Prevention (CDC) advises that non-pharmaceutical interventions (NPIs) will be the most important tools. There are three categories of NPIs:

• Personal NPIs, which include personal protective measures such as washing hands;
• Community NPIs, which include social distancing designed to keep people who are sick away from others; and
• Environmental NPIs, which include surface cleaning measures.

Each employer will have to determine which NPIs are appropriate for its business.

In the final week of February 2020, the CDC confirmed the possibility of community transmission cases in the United States. Although none of Canada’s confirmed cases have been community transmission cases to date, Canada’s Public Health Officer has indicated that Canada has begun to look at tracking community transmission of COVID-19 in Canada.

Although, we hope that there will be limited community transmission cases in the United States and that there will be no community transmission cases in Canada, employers in Canada and the United States would be prudent to prepare for situation managing a potential outbreak.

Concrete and practical situation management steps for employers

The following three concrete steps can be taken by employers before the potential wider outbreak warned by Canada’s Public Health Officer. If an outbreak occurs, employers should consider immediately implementing these three concrete steps.

1. Consider potential employment issues (including business continuity) that may arise and legal considerations. Here are examples of employment-related business issues to consider:

• Preventative steps now. Employers can take a number of preventative steps, including:
  1. remind employees of respiratory etiquette and hand hygiene;
  2. encourage sick employees to stay home;
  3. perform routine environmental cleaning;
  4. advise employees before travelling to take steps such as reporting their travel locations to their employer;
  5. consider restricting business travel to certain countries or regions;
  6. encourage employees to inform employers if they are undergoing testing for COVID-19, particularly if there has been contact with others at the workplace;
  7. encourage employees to inform employers if they have a sick family member at home with COVID-19;
  8. inform employees that some people may be at higher risk for severe illness, such as older adults or those with chronic medical conditions;
  9. encourage employees that may be vulnerable and may be at higher risk for COVID-19 adverse health complications to inform their employer, so that an informed decision on whether additional precautions should be taken can be considered, if applicable;
  10. cross-train employees to perform essential functions in case of workplace absences;
  11. remind employees of cyber risk related to COVID-19, including not becoming a victim of COVID-19 phishing email attacks;
  12. consider whether flexible work hours (e.g., staggered start times and/or shifts), remote work or other off-site arrangements would be acceptable to the business, and if necessary, upgrading and testing technology now to deal with remote work arrangements if required;
  13. reach out to key suppliers to ensure that the business will have uninterrupted goods and services during any outbreak;
  14. create or update human resources policies, including statutory and non-statutory leaves of absence policies and legal requirements, business continuity plans and pandemic response plans, including who in the chain of command can make a decision to close business locations; and
  15. assess whether, in case of an outbreak, the business has and will have sufficient inventory and supplies, including from a health and safety perspective (e.g., tissues, no-touch disposal receptacles, soap and water, surface cleaning supplies, disposal wipes and hand sanitizers).
• Employee shows up ill. Employees who show up in the workplace appearing to have acute respiratory symptoms (e.g., cough or shortness of breath) should be separated from other employees and/or, if appropriate, sent home without delay.
• Employee refuses to work for safety reasons, employee returns from travel from a region that has reported COVID-19 cases and/or evidence of community transmission, or employee informs employer that s/he or a family member at home is undergoing testing for COVID-19. This will be a case-by-case determination. In these cases, key legal considerations for employers will be occupational health and safety legislation, employment standards legislation and public health guidance from reputable sources. Context will be very important. An emergency room hospital setting, for example, is very different from a typical professional services office setting, and different from an airline setting. A region that has thousands of community transmission cases may be different from a region with only one reported case that is not from community transmission. An employee with a high number of face-to-face interactions may warrant different considerations than an employee that has limited face-to-face interactions.
  Context matters.
• Employee discriminates against another employee on the basis of race or other prohibited grounds. Employers generally have an obligation to maintain a discrimination-free workplace. Employers must deal with any discriminatory behaviour from employees promptly and firmly.
• Significant absences in the workforce. Businesses should consider how they would deal with a significant number of absences, including for reasons of voluntary self-isolation or mandatory quarantine. Options include asking employees to work overtime, hiring temporary employees with appropriate employment contracts to mitigate risk, and engaging temporary help agencies for temporary workers.

2. Assess the nature of the business. It is important to have an objective assessment of the business and any unique risk factors that may be present in the environment. For example, as we wrote about earlier this year in our article titled Novel Coronavirus Outbreak: Legal and Practical Insights and Perspectives, the hospital sector has unique clinical and legal considerations. Retail businesses with a large amount of face-to-face contact with members of the public will have somewhat different considerations than businesses that only employ workers that work remotely. Long-term care homes, retirement homes and airlines will also have unique considerations. Depending on the nature of one’s business, certain steps will be necessary and/or appropriate to take that may not necessarily be necessary or appropriate to take for a business in a different sector. Again, context matters. Depending on the nature of the business, the COVID-19 situation can have broader business impacts, including business transactions, contracts with other parties, and supply chains.

3. Locate reputable sources for information and advice. In uncertain times like these, it is important to base actions on evidence and facts. Employers should be cautious before relying on non-government sources, as misinformation abounds on the internet. Reputable sources include medical expert organizations such as:

• Public Health Agency of Canada
• BC Centre for Disease Control
• Government of Québec
• Ontario Public Health
• Toronto Public Health
• CDC
• WHO

Leaders including executives, legal and human resources heads, should consider taking these concrete steps now. Businesses may already have human resources policies, pandemic response plans and/or business continuity plans, and they should be assessed and updated regularly. In times like these, it is better to be over prepared than underprepared.

Click here to read the full article by BLG Canada's Law Firms-James Fu

 "HR Options can work with you to draft workplace policies and assist you with human resource and management strategies, please contact us at 1-866-859-4157 or www.hroptions.com ."

Article written by: James Fu for BLG Canada's Law Firm
Publised on: March 3, 2020
Spotted by: Kathryn Benson

“I quit! Wait, I changed my mind.” The Impact of Rescinded Resignations on Length of Service

Labour, Employment and Human Rights Bulletin | HR Space

A resignation must be clear and unequivocal to end employment. Sometimes employees change their mind and try to rescind a resignation. When this happens and the employee continues working for the employer on the same terms and conditions without any interruption, the decision in Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation) says the employee may be deemed to have lost all prior service with the employer.

What Happened

The employee started working as a hygienist in the employer's dental office in Stoney Creek, Ontario in 1993. At the time of hire, she did not sign an employment agreement. However, due to a number of company restructurings, the employee was eventually required to sign several employment agreements, beginning in 1999, in order to remain employed by the Company. All of the employment agreements limited her termination entitlements to the minimum standards under the Ontario Employment Standards Act, 2000 ("ESA").

On March 28, 2005, the employee tendered her resignation effective July 7, 2005. Prior to the effective date of resignation, the employee told the employer that she wished to continue working at the dental office. The employer was happy to have her continue working and they signed a new employment agreement on June 30, 2005. Between the date she resigned and June 30, 2005, the employee worked continuously without any interruption. There were no changes to the terms of her employment in the new employment agreement. Like her prior agreements, the new agreement limited her rights upon termination to the minimum standards under the ESA.

In 2011, the employee signed another employment agreement, which also limited her termination entitlement to the minimum standards under the ESA. In December 2012, the employee was dismissed without cause. She was provided with one week of pay pursuant to the Ontario Employment Standards Act, 2000. She sued.

What did the Court Say

The trial judge said the resignation in 2005 did not result in a break in her service. This was because the employer allowed her to rescind her resignation and perform the same responsibilities without any interruption. A letter of support that the employer wrote to help the employee get financing was also relevant because it showed that the employer viewed the employee's employment as having been continuous since 1993. The judge said none of the employment agreements were enforceable so he awarded her 15 months' notice for her 19 years of service.

The employer appealed. The appeal court said the unequivocal resignation in 2005 resulted in a break in the employee's service. In order to be rehired she had to sign a new employment agreement. The court also said that the new employment agreement was legally binding. As such, the court of appeal calculated the employee's service from 2005 (not 1993), and awarded her 7.5 weeks' notice in accordance with the minimum standards under the ESA. 

Lessons for Employers

It remains to be seen whether this decision will be appealed. However, as it stands, this decision shows that an unequivocal resignation that is rescinded can result in a break in service. To avoid any disputes, it is prudent for an employer faced with this situation to seek legal advice. At a minimum, the employer should require that the employee sign a new employment agreement that specifically states that the employer will not recognize any service before the resignation when calculating length of service and termination entitlements unless required by employment standards legislation and then only to that minimum extent.

Click here to read the full article.....

Article published by: Fasken Deb 5, 2019

Article written by: Nicole Singh

Article spotted by: Louise Burden

Why Outsource Your People Operations in Canada?

When it comes to People Operations, also known as Human Resources (HR), there are specific laws that must be adhered to when hiring, employing and terminating employees, and no two countries are the same. When expanding into the Canadian market, you could take the time to learn Canadian laws - which can be difficult to navigate (i.e. vacation pay and maternity leave) - or you can simply outsource the process to an expert.

Choosing to partner with an Outsourced Employer as part of your expansion plan is ideal if your plan is to hire between 5 and 150 people. Using an Outsourced Employer as your Employer-of-Record is an efficient way to get your Canadian employees hired and paid without having to navigate Canadian government bodies, and while allowing your team time to focus on growing your business.

An Outsourced Employer has hundreds of “employees,” and as such can offer preferred pricing on group benefit (i.e. health insurance) premiums. If you attempt to obtain individual or group benefits on your own, it is more difficult and costly than joining an Outsourced Employer’s group benefit plan. Aside from preferred pricing, an Outsourced Employer also takes on all the employee liability risk. This means that, if your employees are terminated and decide to sue their employer for damages, the Outsourced Employer fights to keep your company out of the complaint. It is the Outsourced Employer’s responsibility to ensure all employment relationships are 100% compliant with all Canadian HR best practices, payroll legislation, employment laws and regulations. The Outsourced Employer is also responsible for the following:

·         Establishing HR policies in compliance with Canadian laws

·         Processing payroll online – including accurate statutory taxes, retirement contributions and benefit administration

·         Providing an employee policy handbook and legislated training

·         Creating employment agreements for each hire and on-boarding new employees

·         Keeping performance records for all Canadian employees

·         Preparing termination paperwork and handling terminations

·         Assisting with any HR issues that arise with the employees (e.g. absenteeism, poor performance, leaves etc.)

Common question: If an Outsourced Employer provides so much value, why don’t more companies use them?

Many executives simply don’t know that Outsourced Employers exist, and if they do, they are not familiar with the benefits of using an Outsourced Employer (which can mean choosing to share Employer-of-Record liability so your company can maintain employer status for important documents such as Certificates of Authorization for Engineering firms, for example).

Some companies might feel the process of hiring and paying employees in a new country is relatively simple and is a start-up cost only. However, proper consideration is not always given to the time and resources that goes into a smooth and efficient HR, payroll and benefit infrastructure or the breadth of knowledge required to employ in Canada across different provinces.  The idea of decreasing HR liability and reducing benefit costs usually comes after the company has decided to employ directly. After initial set up, Executives are immediately focused on other pressing issues, such as product development, sales, and expansion in the new location. CFOs and COOs often instigate the decision to use an Outsourced Employer when they discover the impact of inadequately run HR, Payroll and Benefits on the bottom line and productivity of the company. Companies should look to engage with an Outsourced Employer when the benefit is highest: as soon as they consider entering the Canadian market and are looking to hire Canadian employees.

Alternatively, if you are already employing in Canada or you are a larger sized company with questions about HR in Canada, you may want to consider adding a Canadian HR consultant to support your team.

Looking to expand to Canada and hire Canadians? Want to talk to an Outsourced Employer?

Email us HERE