In case the COVID-19 health pandemic and ensuing economic catastrophe have not created enough additional stress and risk for B.C. businesses, many employers now face the prospect of cautiously restarting operations in offices that have been empty for months.
Return to the “new normal” occurs within the context of occupational health and safety (OHS) law that is largely unfamiliar to employers in an office environment, where hazards have previously been limited to, say, paper cuts and ergonomic irregularities.
No more.
COVID-19 is an unusual threat to workplace safety, because it is invisible and does not originate from anything inherent in the nature of a workplace process. Nevertheless, as many are coming to understand, employers have a responsibility to manage all risks that are reasonably foreseeable in the workplaces they operate, by eliminating, mitigating or managing them.
This responsibility flows from “general duty” in workers’ compensation law. The general duty requires that an employer must ensure the health and safety of all workers of the employer, as well as any other worker present at the employer’s workplace. It is a broad and onerous responsibility that imposes significant burdens on employers when restarting their operations. This is especially true in offices because of the proximity in which teams work together.
In discharging this “general duty,” employers are not measured against a standard of perfection, but of “due diligence,” which means that an employer must take all reasonable steps to manage foreseeable risks.
Exercising due diligence and conducting hazard assessments is a common activity for employers in industrial environments, the sectors where dangerous equipment, machinery and processes are concentrated. Less so in an office.
In the world of COVID-19, the health risk profile of the average office has changed. It is the legal responsibility of employers to take those reasonable steps to discharge due diligence.
Fortunately, there is a growing body of practical guidance from both B.C.’s public health authorities and WorkSafeBC on how to keep office workplaces safe. That guidance is still developing. For example, in the week of May 18, WorkSafeBC published new reopening guidance for some specific kinds of businesses, and the federal public health officer, Dr. Theresa Tam, revised her recommendation around the use of masks. We can expect further adjustments as science chases the virus, but the essential elements are getting clearer.
The first thing an employer who assumes responsibility for reopening an office should do is find the materials applicable to their workplace and read them.
The second thing to do is build a special health and safety team together. Base it on expertise, interest, availability, willingness, judgment, as well as special insights each member might bring.
Third, think about the knowledge you have developed. The resources mentioned above are a solid source. Think about staging your restart in phases. Can you schedule people whose work space allows them to isolate more easily, differently from those who cannot? Can you move some people within your office for the time being to allow for better social distancing? Does it make sense to limit client, customer or supplier visits or subject those visits to greater control for the time being? Do we require masks to be worn? If so, where and when? The above just scratches the surface of strategies employers might consider.
Fourth, write your plan down. Distribute it to your people. Make a show of the fact that you have considered the health issues on restarting and have confidence in the measures you are taking.
Fifth, execute on the plan. While recognizing that the measures we all have to live with during the pandemic are temporary, and therefore they will inevitably adapt over time, it is dangerous to your organization to do all the work of building a safe restart plan, and then allow people to ignore it. Filing cabinets are often graveyards where human resources policies go to die. This one cannot. If it does, someone might.
Finally, be practical. The health and safety legal principle of due diligence directs the standard you must meet, but not exactly how to get there. The recent guidance from public health and safety regulators helps. But nobody is expecting employers to become epidemiologists. And remember, the new rules of social interaction are counter-intuitive. In dealing with folks who might forget the plan, or be neglectful, be kind. Remind. That is what a WorkSafeBC officer typically does when a business misses the mark or does not have the expertise. Safety is the goal, compliance is the means. Enforcement is the exception, not the rule.
Overall, restarting office operations in the world of COVID-19 requires business leaders to strike a balance between deference to science, the priority of safety, creation of viable rules, pragmatism, and an acknowledgement that work in the era of COVID-19, like politics, will be for the foreseeable future, the art of the possible.•
The article is for general information purposes only and does not constitute legal advice.
Gavin Marshall is a partner at Roper Greyell LLP, where he practises labour, employment and workplace human rights law.
