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As Ontario moves towards reopening workplaces, businesses must carefully consider their health and safety obligations through the new lens of minimizing the risk of spread of COVID-19 within the workplace. These considerations are equally relevant to workplaces that have remained operational as essential businesses, and to workplaces that were shut down and are now planning their reopening. In this post, we have outlined the main considerations applicable to provincially regulated, Ontario-based businesses operating in office environments with a non-unionized workforce.

Occupational Health and Safety Applies to You

During the COVID-19 emergency (declared pursuant to Ontario's Emergency Management and Civil Protection Act  ("EMCPA"), any "person responsible for a place of business" must ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act ("OHSA") and its regulations, and in compliance with "the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting."1

Businesses operating in office environments with a non-unionized workforce may traditionally have considered occupational injuries and illnesses a remote risk. However, as workplaces reopen and we move toward the "new normal," in which everyone must remain vigilant about minimizing the risk of COVID-19 spread, it is critical that employers re-evaluate such assumptions and turn their minds to their workplace occupational health and safety policies and practices. The importance of doing so cannot be understated, especially in light of the significant fines and other penalties (including risk of imprisonment) that can be imposed for breaches of the OHSA, the EMCPA, and the regulations and orders made pursuant to those statutes.

The measures necessary to maintain a healthy and safe workplace during the COVID-19 pandemic will vary from one workplace to another: there is no one-size-fits-all approach. Each employer should therefore develop a reopening plan tailored to the particular characteristics of its workforce and physical workplace. Some key resources are listed and linked at the end of this blog. As noted, this post focuses on office workplaces.

Employer, Supervisor, Worker, and Director/Officer Obligations under the OHSA

Even in the absence of a global pandemic, all employers, supervisors, and workers have certain duties and responsibilities under the OHSA. Such duties include (among others):

For employers, the requirements to:

  • Have in place, and post at a conspicuous location within the workplace, a written occupational health and safety policy, reviewed at least annually;
  • Develop and maintain a program to implement the occupational health and safety policy;
  • Provide information, instruction and supervision to their workers to protect their health and safety, including but not limited to basic occupational health and safety awareness training programs for workers and supervisors with specific requirements prescribed by regulation; and
  • Take every precaution reasonable in the circumstances for the protection of their workers.

For supervisors, the requirements to:

  • Advise workers of any potential or actual danger to their health and safety of which the supervisor is aware;
  • Ensure that workers use or wear any equipment, protective devices or clothing that the employer requires to be used or worn; and
  • Take every precaution reasonable in the circumstances for the protection of workers.

For workers, the requirements to:

  • Work in compliance with the OHSA and its regulations;
  • Use or wear the equipment, protective devices or clothing that the employer requires to be used or worn, and report to their employer or to their supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself or herself, or another worker; and
  • Report to their employer or to their supervisor any contravention of the OHSA or the regulations, or the existence of any hazard of which the worker knows.

For directors and officers of corporations, the requirements to:

  • Take all reasonable care to ensure the corporation complies with the OHSA, the orders and requirements of inspectors and Directors, and Ministry of Labour orders.

Health and Safety Representatives and Committees

Employers with workplaces with more than five workers are required to have either a workplace health and safety representative (required where the number of workers in the workplace regularly exceeds five but is less than twenty) or a joint health and safety committee ("JHSC") (required where the number of workers in the workplace is regularly twenty or more). Health and safety representatives and JHSCs have certain powers under the OHSA, including the power to identify situations that may be a source of danger or hazard to workers and to make recommendations to the employer thereon, and to obtain information from the employer respecting the identification of potential or existing hazards. JHSCs have additional powers to make recommendations to the employer and to workers for the improvement of worker health and safety or about the establishment, maintenance and monitoring of programs, measures and procedures respecting worker health and safety.

The health and safety representative or a JHSC member designated by the JHSC members representing workers is required to inspect the physical condition of the workplace at least once a month, or, if a monthly inspection is not practical, at least once a year, inspecting at least a part of the workplace in each month, with full cooperation from the employer and its work force. The JHSC member must report back to the JHSC with respect to any situations that may be a source of danger or hazard to workers, and the JHSC must consider the information within a reasonable time. JHSCs must meet at least on a quarterly basis, on company time.

COVID-19 Workplace Policies and Programs

To minimize the risk of COVID-19 spread within the workplace, employers should use their general occupational health and safety policy as a starting point, and supplement it with specific policies and practices to respond to the pandemic. When the pandemic is over, employers can thus revert back to their general policy. Employers should consider involving their workplace health and safety representative or JHSC in the development or communication of the COVID-19 specific policies.

It is highly recommended that employers conduct a thorough risk assessment prior to reopening the workplace and periodically thereafter, including a walk-through of the physical workplace to identify areas and activities that could pose increased risk of COVID-19 transmission. Once risks have been identified, strategies should be implemented to mitigate those risks to the extent reasonably possible.

From an occupational health and safety perspective, the following main considerations should be addressed by the COVID-19–specific policies:

  1. Which individuals should be permitted into the workplace, and when. Policies should address screening of individuals seeking entry into the workplace, including measures to prevent access by individuals who have COVID-19, who have been tested for COVID-19 or told by public health authorities that they need to quarantine or self-isolate due to likelihood of exposure (until cleared), who have had close contact with someone who has or is suspected to have COVID-19 (until cleared), anyone with symptoms of COVID-19 (no matter how mild), and anyone with a travel history that presents an increased risk of exposure to COVID-19;
  2. Measures to limit contact between workers and other individuals (co-workers and visitors) in the workplace. Policies should address methods to limit the number of workers and other individuals permitted in the workplace and/or specific areas of the workplace at one time, rearrangement of the physical workplace to increase physical separation of workers, management of traffic flow in the workplace, the installation of barriers, contactless delivery of supplies, mail and parcels, and personal and business travel. Policies should also address the use of personal protective equipment ("PPE"), including whether the use of PPE is required or merely recommended, and to what extent supervisory personnel will be expected to enforce its use;
  3. Cleaning and hygiene practices to be implemented in the workplace. Policies should address compliance with public health recommendations on personal hygiene and etiquette (e.g. hand-washing and coughing), as well as on workplace cleaning and sanitization;
  4. Measures to respond to COVID-19 exposure and other related hazards in the workplace. Policies should address a response plan in the event of worker exposure to or onset of symptoms of COVID-19 in the workplace, a process for addressing worker concerns and work refusals, tracking of attendance, travel, and suspected/positive COVID-19 cases in the workplace, as well as other foreseeable hazards (such as mental health issues or potential hazards relating to working from home); and
  5. Communication and training on the policies. Employers must ensure that the policies developed in accordance with the above considerations are clearly communicated to all personnel. In addition, they must provide training to supervisory personnel on the enforcement of the policies. Because measures required to suppress the spread of COVID-19 in the workplace are likely to create a significant culture shift, clear messaging (including as much notice to the workforce as possible) should be central to any reopening strategy.

Making Workplace Health and Safety a Priority Going Forward

Businesses operating in office environments have historically been able to view workplace illnesses and injuries as remote risks. That is no longer the case with the advent of COVID-19 and the risk of its spread in the workplace. Now is the time to refresh your understanding of your obligations under the OHSA, to ensure that you have the right health and safety representative or JHSC in place if required, and to update what may now be dated and insufficient health and safety policies. We have listed a number of resources below to assist you in meeting your obligations under the OHSA during COVID-19, but you may also want to seek expert guidance if you are at all uncertain about these obligations.

Links to Resources

Government of Canada

Government of Ontario

Industry Associations

Footnote

1. See Order Under Subsection 7.0.2(4) – Closure of Places of Non-Essential Businesses, O. Reg. 82/20 (as amended), Schedule 3, s. 1.

Originally published 2 juin 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.