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The recent and rapid development of the COVID-19 pandemic, both globally and nationally, has given rise to a myriad of significant concerns.
High among these concerns is employee health and safety, and an employer’s obligation to protect its employees. In part due to the unprecedented measures being taken at all levels of government (Federal, Provincial, and Municipal) to minimise the impact of the pandemic on the Canadian people, uncertainty has arisen regarding employees’ rights and obligations to attend at (or avoid) a work site given potential exposure to COVID-19. With that in mind, we outline some key considerations and suggestions for managing the work site from a health and safety perspective during this uncertain time.
Employers should bear in mind that, regardless of the presence of a COVID-19 risk, the designated Constructor (typically the Owner or a third party to whom it has delegated responsibility or named as Prime Contractor or qualified coordinator) of the work site is responsible for ensuring that all stakeholders comply with health and safety legislation. This responsibility includes, among other things, creating a schedule of regular health and safety inspections, as well as selecting a health and safety representative or (depending on the circumstances) establishing and managing a health and safety committee comprised of stakeholder representatives.
Employees’ Right of Refusal
By operation of Provincial and Federal occupational health and safety legislation, generally, employers are obliged to provide a workplace that protects “workers and other persons present at workplaces from work related risks to their health and safety.” Employees have a right to refuse to work at a site that fails to protect their health and safety, so long as employees have a reason to believe that their health is in danger or that the work site poses an undue hazard. In the present circumstances, the COVID-19 virus may, depending upon the circumstances, satisfy this test.
Where an employee exercises this right of refusal, the employer’s obligations are immediately triggered. On being notified of the employee’s refusal, the employer must advise other relevant persons (such as a health and safety representative and/or the appropriate governmental authority) of the refusal, determine whether the employee’s refusal is justified in the circumstances, and advise the employee of the employer’s determination.
Determining what is justified in the circumstances is complex at the best of times, and has only been made more complicated by the uncertainty and change that COVID-19 has brought (and continues to bring). Accordingly, we recommend that employers exercise caution as the COVID-19 pandemic continues to evolve and as our understanding of it, and governmental reaction to it, evolves as well.
As an employer’s ability to manage work sites in response to COVID-19 is complicated by the uncertainty surrounding the virus itself, we recommend implementing a complete and robust procedure for addressing potential dangers to employees and the work site arising from the virus. Employers should bear the following considerations in mind in crafting procedures to address circumstances where staff have become aware of a precautionary quarantine or confirmed case of COVID-19:
1. Immediate Health and Safety: first and foremost, the employer must take all reasonable steps to ensure that workers at the work site (including those people working on site for suppliers, contractors, and/or consultants) and the public are not exposed to an immediate risk to their health or safety. Depending on the circumstances, initial steps may include shutting down all or part of a site and notifying the appropriate public health authorities. Should the course of action include shutting down the site, the employer must also ensure that the site is secure and that the site and associated risks have been remediated to the extent possible before vacating the site. Depending on the nature of the site, it may or may not be possible to clean the affected area.
2. Collection and Dissemination of Information: second, and beyond immediate health and safety, the employer is well advised to have a detailed plan in place to collect and disseminate information related to any COVID-19 risk and/or exposure. Such a plan may include:
Once this relevant information has been obtained, the employer should relay it to stakeholder representatives, and the relevant public authority where appropriate.
3. Debriefing and Communications: the employer must debrief stakeholders (including unions, employee associations, and owners) as soon as reasonably possible subsequent to collecting the above-mentioned information, in order to plan next steps in a manner consistent with public health and safety. Any such debriefing must observe social distancing procedures required and/or recommended by all levels of government or it may be that the debriefing needs to be conducted virtually.
4. Implementing Next Steps: debriefing is intended to result in a concrete plan for the implementation of next steps, including whether such steps are to be taken by the employer, other stakeholders, such as subcontractors or suppliers, or third parties. Any such plan should establish a methodology to eliminate the COVID-19 risk and reopen the work site, and should be based on the implementation of plans created by Response Groups, as described below. Such steps may also include establishing a regular meeting schedule to ensure that all stakeholders are up to date with respect to the COVID-19 risk (both to employees and the physical work site), and issuing a report or reports regarding the risk.
5. Reopening the Work Site: where the employer has closed the work site, the employer and all stakeholders should conduct a final, detailed review of the site prior to reopening so that stakeholders may satisfy themselves that the site no longer poses a risk to the health and safety of workers and the public, and that there is no risk of running afoul of the applicable health and safety legislation.
Additionally, employers should bear in mind that the work site may be shut down by a health and safety inspector where the inspector finds a danger or hazard to the health or safety of a worker. In that circumstance, the inspector may order that the work be stopped until the danger (e.g. the COVID-19 risk) is removed, and work may only resume after the inspector’s order is withdrawn or cancelled.
COVID-19 Response Groups
Given the rapidly-evolving nature of COVID-19, many employers have already taken steps to create dedicated COVID-19 response groups in order to coordinate organizational plans with stakeholders and disseminate real-time updates and guidance with respect to working conditions as they arise. These response groups may set policies with respect to work site operations, such as splitting work shifts and staggering breaks in order to reduce physical contact between workers, reducing or eliminating meetings and employee travel to the extent possible, and implementing enhanced cleaning measures.
We recommend, for those employers who have not already implemented a COVID-19 response group, that they do so as soon as possible. These groups will not only facilitate the handling of existing site health and safety conditions, but may also be deployed to plan a response to other potential issues before they arise, such as supply chain disruptions and other business interruptions, as well as increased IT infrastructure requirements resulting from the increase in remote work.
It will come as no surprise to employers that the COVID-19 pandemic represents unprecedented circumstances for Canadian employees and employers alike – the construction industry is no exception to this. In these circumstances, caution and diligence will be necessary for the foreseeable future. We encourage employees and employers alike on construction projects to implement detailed procedures in order to address COVID-19 in a manner that protects the health and safety of all stakeholders.
 Occupational Health and Safety Act, RSO 1990, c O.1 at s. 23(1),
 Workers Compensation Act, RSBC 1996, c. 492, as amended, s. 118; and B.C. Reg 296/97, Part 20 – Construction, Excavation and Demolition.
 Occupational Health and Safety Act, RSO 1990, c O.1 at ss. 8 and 9.
 Workers Compensation Act, RSBC 1996. c. 492, as amended, Part 3, Occupational Health and Safety, s. 107; and B.C. Reg. 296/97 Occupational Health and Safety Regulation, s. 3.12. See also, Occupational Health and Safety Act, RSO 1990, c O.1 at s. 43.3(c).
 Occupational Health and Safety Act, RSO 1990, c O.1 at s. 57. See also, Workers Compensation Act, RSBC 1996. c. 492, as amended, Part 3, Occupational Health and Safety, s. 191.
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We advise on, and are skilled in, all aspects of employment and labour law, including a wide range of issues which impact the workplace from both the employer and employee perspectives.
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