HRLR Insights - Staffing Considerations Amid Service Disruption

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In this Issue How to be Prepared When Dealing with Disruptions to Service and Staffing Occupational Health and Safety Considerations for Employers

HR/LR Insights Newsletter Issue 8

April 2020

Staffing Considerations Amid Service Disruption This publication focuses on staffing implications in light of the COVID-19 pandemic.

HR/LR Insights Welcome to SARC’s Human Resources and Labour Relations Newsletter.

Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.

CONTENTS

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How to be Prepared When Dealing with Disruptions to Service and Staffing

Occupational Health and Safety Considerations For Employers in Response To COVID-19 and the Coronavirus Pandemic

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This article highlights certain staffing issues and considerations that may come up due to service disruption during things like pandemics, natural disasters, or labour disputes.

This article focuses on OH&S requirements and considerations that are relevant to COVID-19.

A B O U T T H E C O N S U LTA N T S

About Marrion Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and nonunionized organizations.

She can also provide

specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick checkin or a review done before decisions are made can save you time and money in the end.

Marrion Wolff SARC Labour Relations Consultant

About Amy Amy Gibson carries on a general labour and employment practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S,

workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

Amy Gibson M LT A i k i n s HRLR NEWSLETTER

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How to be Prepared When Dealing with Disruptions to Service and Staffing

working from an Emergency Preparedness Plan that we realize certain changes are required, and now is really the best time to document it. SARC has a number of resources in our online Manager Resources Area under the heading Business Continuity/Emergency Preparedness – COVID 19.

In any type of emergency, one of your most important concerns will be staffing, with number one being do you have enough trained staff at your disposal? To ensure that you do, consider some of the following ideas:

1. Cross Train Your Employees:

Marrion Wolff

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SARC Labour Relations Consultant

isruptions can come in many forms. Obviously, there can be a pandemic, but we can also experience ice storms, labour disputes or a rash of unexpected resignations. Whatever the cause, you are faced with keeping the organization afloat and operating in a safe, efficient manner. How well you are prepared for these eventualities will directly impact your ability to carry on business as usual. Most organizations will have already developed their Emergency Preparedness Plans, but now is the time to make sure they are up to date and make any changes that our current situation has necessitated. Sometimes it is when we are in a situation that requires

While Direct Support Professionals are trained to care for your clients, there are always some specific directions and procedures needed for some complex situations. It may be too time consuming to have complete cross training for these circumstances, so it is therefore imperative that information on residents be kept up to date and accessible in cases of staff changes. Remember too that cross training for managers, program coordinators, and payroll clerks is also very important.

2. Hire Temporary Staff: Make sure your hiring processes are well defined and easy to implement. Have you identified the best sites to advertise for new staff, such as recent graduates and summer students? This will include orientation and onboarding for new temporary staff. Of course, you will have to consider how you will be able to provide training

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to new employees, particularly if some of your required programs are delivered in-person—something that can’t easily be done these days. Are there online alternatives?

Or, are there certain areas where you cannot provide the necessary training and therefore employees will not be able to work alone or perform certain tasks for now?

3. Know Your Current Staff: Knowing your staff’s personal situations, preferences and plans can help you gain a better understanding of their work/life balance needs. You likely have a multi-generational workforce, and employees will have different needs and abilities to respond to a staff shortage at the workplace.

In these situations it can be very beneficial to give employees some flexibility in their schedules where possible. Employees will appreciate having this flexibility, and this will result in improved morale and loyalty while helping the employer create workable schedules. As always, check with your Collective Bargaining Agreement (if unionized) and appropriate legislation to ensure that you are following all necessary provisions as they relate to scheduling and hours of work.

Staffing is just one consideration within an Emergency Preparedness Plan, but it’s a significant one.

4. Keep in Touch with Retirees: This group of past employees can be a valuable resource in times of staff shortage, but only if you have their contact information readily available.

5. Plan to Silo or Move Work Sites: The circumstances of your staff shortage may dictate that you restrict employee movement from one workplace to another. If you are dealing with an infectious disease this will likely be necessary, and may also be required in order to provide adequate staff coverage for the residents. Part of your plan should include how to physically move a work site and many other details that would be part of your Emergency Preparedness Plan. You may also find it necessary to transfer staff to a different location for work.

This can be disruptive to staff who may not be enthused about the new assignment; however, employers should make this as good a transition as possible.

Employees may be expected to car pool and the employer should be paying mileage to the new work location and also compensating for the commute time if it’s significant compared to the old commute. Again, check your Collective Bargaining Agreement (if unionized) to ensure you are

not violating any of its articles.

There may be an argument to be made that you are dealing with an emergency and therefore may have no choice; however, the CBA should be followed wherever possible and there may be consequences to deal with if that is not the case.

Good communication with your union representative will also be beneficial at this time.

6. Stay Informed: As we have seen with the current public health emergency, governments have brought in new legislation or amended regulations to deal with the issues facing employers. Since these changes can affect nearly every aspect of your business, including staffing, it’s imperative that you stay up to date on the latest changes.

These changes are communicated mainly through the government websites along with tips on how to implement the new regulations, so ensuring you have these sites

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at your fingertips and check them regularly is a must. These websites are listed in SARC’s online Manager Resource Area under Business Continuity/Emergency Preparedness.

Staffing is just one consideration within an Emergency Preparedness Plan, but it’s a significant one, and the decisions an employer makes in this regard can have lasting impacts beyond whatever the emergency was that necessitated the action in the first place. While it may be difficult to find the time for documentation in these situations, that documentation is important for a variety of reasons, and, as mentioned earlier, it will serve you well if and when the next time comes that you have to enact your Emergency Preparedness Plan.

Occupational Health and Safety Considerations for Employers in Response to COVID-19 and the Coronavirus Pandemic – as of April 10, 2020

challenging public health risk given its infectious nature and respiratory symptoms, it also presents a very real and difficult challenge to employers and workers to prevent the spread of COVID-19 in the workplace and mitigate its effects in accordance with the requirements of The Saskatchewan Employment Act (the “Act”) and The Occupational Health and Safety Regulations, 1996 (the “OHS Regs”). This article seeks to highlight some of the key occupational health and safety considerations that Saskatchewan employers need to know in emergency situations such as COVID-19.

Amy Gibson

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MLT Aikins

n March 11, 2020, the World Health Organization (“WHO”) classified severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and the disease it causes, COVID-19, as a pandemic. Not only does COVID-19 present a very

Obligation to Provide a Safe Working Environment in the Context of an Infectious and Communicable Disease

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mployers have an obligation to provide a safe working environment and to do everything “reasonably practicable” to protect the health, safety and welfare of the employer’s workers. Employers also have an obligation to provide any information, instruction, training and

supervision that is necessary to protect the health and safety of workers at work. These obligations continue to apply when addressing health and safety issues related to COVID-19.

COVID-19 is also likely a “biological substance”, which triggers the provisions contained in Part XXI of the OHS Regs dealing with Chemical and Biological Substances. Generally, employers are required to take all practicable steps to prevent exposure of a worker to a biological substance that may be hazardous.

The presence of COVID-19 in Saskatchewan also potentially triggers various specific obligations under the OHS Regs such as: • Access of a worker to and removal from the workplace in the event of infection or suspected infection;

Employers have an obligation to provide a safe working environment and to do everything ‘reasonably practical’ to protect the health, safety and welfare of the employer’s workers.

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O H & S C O N S I D E R AT I O N S F O R E M P LO Y E R S C O N T I N U E D

• Training, information and signage; • Personal protective equipment requirements; • Investigation and mitigation measures in the event of an infection or suspected infection; • The right to refuse unusually dangerous work; • Privacy and reporting obligations; • First aid obligations; and • Transport and travel assistance for workers infected in remote locations.

These specific and technical obligations should be reviewed in the context of your specific workplace safety program and a potential case of COVID-19.

Exposure Control/Pandemic Response Plan

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OVID-19 could satisfy the definition of “infectious material or organism” under

the OHS Regs. If workers are likely to be exposed at a place of employment to an “infectious material or organism,” then the employer is required to develop and implement an exposure control plan to eliminate or minimize worker exposure.

In Saskatchewan, an exposure control plan must be in writing and must meet, among others, the following requirements: • Identify any workers at the place of employment who may be exposed; • Identify categories of tasks and procedures that may put workers at risk of exposure; • Describe the signs and symptoms of any disease; • Describe infection control measures to be used, such as vaccination, personal protective equipment and safe work practices and procedures; • Set out procedures if a

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worker has been exposed or if a worker believes that he or she has been exposed; • Describe the training to be provided to workers who may be exposed; and • Require the investigation and documentation of any workrelated exposure incident (in a manner that protects the confidentiality of the exposed worker), including the route of exposure, the circumstances in which the exposure occurred and any measures to prevent further infection.

Employers are required to review the adequacy of such plans and amend them if necessary every two years.

Employers would be well advised to review any existing exposure control or pandemic response plan in place and determine whether it is suitable to meet the particular hazards

Disclosure of Symptoms/ Illness and Removal from the Workplace

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raised by COVID-19. In the event that your organization does not have an exposure or pandemic response plan that is broad enough to mitigate the risks posed by COVID-19, the existing plan should be modified to address COVID-19. If your organization does not have a pandemic response plan, one should be developed as soon as practicable.

Access to and Removal from Workplace COVID-19 raises a number of questions surrounding whether an employer can prevent those who are suspected or known to have COVID-19 from accessing the workplace, and whether a worker can be disciplined for breaching workplace rules designed to prevent the spread of the disease.

n employer can generally require employees to immediately disclose circumstances which may increase the risk of the employee contracting and spreading COVID-19. Such risk factors requiring disclosure could include (but are not necessarily limited to): • Recent international and domestic travel; • Recent contact with a household member with COVID-19 or coming into close contact with a person who has COVID-19; and • Feeling symptomatic (e.g., fever, tiredness, cough, respiratory issues, sore throat).

• Depending on the context, employers could potentially require all employees to undergo pre-access

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symptomatic testing or other testing, such as a temperature reading with a thermometer.

In all cases, care must be taken to ensure that any procedures implemented are nondiscriminatory, applied on an objective basis and comply with human rights legislation and any potentially applicable collective agreement terms.

Where an employer has reasonable cause to believe someone has COVID-19, was exposed to COVID-19, or is otherwise at a material risk of contracting or spreading COVID-19, the employer can likely require their removal from the workplace and require medical confirmation that the employee is fit to return to work and/or has tested negative for COVID-19. Depending on the availability of tests, an employer may also set a recommended additional self-isolation period.

Employers should ensure that they have a policy in place for determining access to and removal from the workplace.

Employee Non-Compliance

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o the extent that an employer takes reasonable measures to manage the risks of spreading COVID-19 in the workplace, an employer can require its employees to comply with those measures.

For example, an employer can require an employee to self-isolate in the event of international or domestic travel or close contact with a person who has COVID-19, in compliance with the Public Health Order. If an employee disregards these safety procedures and accesses the worksite despite the employer’s disclosure requirements, the employer could require the

employee’s immediate removal from the workplace. Depending on the circumstances of the case, such a breach could also be grounds for serious disciplinary consequences and potentially termination of employment.

Work Refusals

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t is not inconceivable that an employee could refuse to work in certain circumstances on the grounds that COVID-19 makes it unusually dangerous to work.

In Saskatchewan, Section 3-31of the Act gives workers the right to refuse dangerous work where a worker has reasonable grounds to believe that an act or a series of acts is unusually dangerous to the worker’s health or safety, or the health or safety of any other person at the place of employment. If an employee refuses to come to HRLR NEWSLETTER

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work due to fear of contracting COVID-19, their employer should respond by carrying out an investigation and if applicable, take action to eliminate the danger in accordance with the applicable occupational health and safety legislation.

If the employer does not take steps to satisfy the worker that the work is safe, the workplace occupational health committee must investigate the matter.

If the worker is not satisfied with the occupational health committee’s decision, the worker or the employer may request an occupational health officer to investigate the matter.

The worker may continue to refuse the work until the occupational health officer investigates and decides the work is not unusually dangerous to the health or safety of the

Any refusal to work in the context of COVID-19 must be considered on a case-by-case basis. worker or any other person in the workplace.

Can an employer assign the work to another worker?

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es, however, employers have certain obligations with respect to assigning the work to another worker. An employer cannot assign work that a worker has refused to another worker unless the employer has advised the newlyassigned worker of: • The refusal and the reasons for the refusal; • The reason(s) the worker may, in the employer’s opinion, carry out the work in a healthy and safe manner; and • The worker’s right to refuse to perform the work.

Any refusal to work in the context of COVID-19 must be considered on a case-by-case basis. The

circumstances of the refusal and the steps the employer has taken to prevent exposure will be very important.

Concluding Comments

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OVID-19 presents significant challenges for employers in the context of OHS legislation.

For organizations permitted to remain open and operational during the pandemic, care will need to be taken to ensure that the organization’s health and safety policies, safe work procedures, training protocols and pandemic response plan are up to date and adequately prepare you to prevent the spread of the virus and keep your workplace safe.

Employers should remain up to date with COVID-19 issues as legislation and public policy is changing on a daily and weekly basis. For more information, please visit MLT Aikins’ COVID-19 Resource Centre.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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