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Legal Notes: Labour laws continue to mandate COVID-19 employee protection

John Bleasby
Legal Notes: Labour laws continue to mandate COVID-19 employee protection

Worksite safety has long been a key element of Canadian labour laws.

In early 2020, this was extended to include employee and employer responsibilities with respect to COVID-19.

Although new COVID-19 case numbers in Canada have declined significantly from the spring, the reward for continued diligence in the face of recent complacency is nothing more than fewer new reported cases — no fireworks, no medals. It’s therefore disturbing when casual observations of restarted construction projects gives the impression that the “old normal” is back on site.

Employers need to remember they are still “required to provide their employees with a healthy and safe work environment. In the context of COVID-19, managers must remain informed of orders, directions and guidance issued by the Public Health Agency of Canada, Health Canada and from their own organizations.”

In the interest of their own protection, regulations under the Canada Labour Code allow workers to refuse work “if there is reasonable cause to believe that the job presents a danger to themselves or another employee.”

That danger includes COVID-19.

When it comes to delivering the required COVID-19 protection under current regulation, employers in turn have the lawful right to collect health and other information from employees as it relates to worksite safety. Although perhaps straightforward in concept, there is a significant level of due diligence required by employers. This involves developing protocols that must be maintained relentlessly until health and safety conditions permit a return to pre-pandemic conditions.

Bradley Sussman and Paul Ryan of K2 Intelligence/Financial Integrity Network, an international risk advisory with offices in New York and London, outline a four-part framework for construction companies to help keep workers safe and their companies out of trouble with labour authorities and possibly the courts.

It begins with a study of each worksite and its individual challenges in relation to guidelines set out by provincial and federal health authorities.

“The safety plan should include site-specific measures, including, but not limited to, how and where temperature screening/testing will be accomplished; how distancing requirements will be met in areas such as elevators, stairs and field offices; where handwashing stations will be placed; and what measures will be implemented to protect workers while performing tasks that make complying with distancing requirements impossible.”

The result is a compliance mechanism tailored to each project site that must be communicated throughout the site team.

Once established, Sussman and Ryan suggest these new safety mechanisms be the subject of a well-designed, project-specific training course, with refresher courses for long-term projects. This training must apply to all personnel, from project executives right down to site workers, and should include affidavits confirming course completion.

Companies should also look beyond their own personnel to monitor policy compliance.

“Owners and construction managers should implement enhanced protocols for frequent site visits from safety professionals and independent consultants to observe, monitor, document and correct compliance concerns regarding the COVID-19 protocols,” say Sussman and Ryan.

This will help keep the established protocols on course and consistent over time.

The result of this high level of monitoring will be data that must be reviewed and analyzed, not only to ensure compliance and identify any repeat offenders regarding COVID-19 protocols, but to develop improvements in overall safety plans within the company.

Specific to COVID-19, the data could prove to be an invaluable aid for any contact tracing required in the event of a positive test result. Furthermore, employers must remember that under provincial laws such as those in Ontario, employers are required to report any COVID-19 positivity to provincial authorities, workplace health and safety committee representatives and trade unions.

It’s not an easy undertaking, admit Sussman and Ryan.

“There is no way for owners and managers to avoid the minefield of additional hazards and project pitfalls created by the current pandemic. However, the faster the new guidelines can be incorporated into a project’s day-to-day operations, the more likely future changes in the landscape will be easier to tackle.”

 

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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