The COVID-19 pandemic has lasted longer than most had expected, with scientific and regulatory reaction to it shifting continuously. Under such circumstances, it’s vital that construction site health and safety plans remain proactive and up to date.
That was the key message from legal experts Tushar Anandasagar and Neena Gupta during Gowling WLG’s recent Spring Construction Law Forum. Given that hundreds of provincial worksite inspectors have been hired to enforce the evolving mandatory requirements, being vigilant makes good common sense.
“What’s the point of going to the trouble of developing a COVID-19 workplace safety plan if, when a public health regulator attends on site, you have to pull it out and blow off a plume of dust?” asks Anandasagar. “We want to be mindful not so much of enforcing as adhering to the plan and making sure that all employees are doing the same. Train, update and revisit your plan regularly, because the regulations are changing faster and with shorter notice than ever before.”
The downside risks for a construction project are serious.
“Public health units have substantial discretion to come in, assess what you’re doing, and to review your COVID-19 health and safety plan. They have the authority to either partially or fully close your site.”
Developing a COVID health and safety plan is fairly straight-forward, explains Anandasagar. Questions to address include: How will you screen for COVID-19? How will you control the risk of transmission? What are you going to do if there is a potential case? Are you are taking all appropriate legally required steps? Are you keeping all workers informed about what they can do to keep safe?
Plans should include: responses to risks caused by work place changes; PPE provision; staggered shift start times; controlling how employees move around break rooms; and the closure of publicly accessible areas.
COVID vaccinations are a much-discussed topic as well. Gupta says the legitimacy of mandatory vaccination policies is the number one question she’s asked. In fact, such policies have several complications such as pushback from unions, plus human rights, disability and religious issues.
There is also the matter of vaccine hesitancy.
In response, Gupta feels employers can make matters easier by incentivizing their people.
Offer paid time-off to get vaccinated as soon as possible, she suggests.
“Tell them to go and get it, so they’re not waiting for an appointment on a Saturday evening two weeks from now.”
For those jurisdictions where vaccination time-off pay is mandated, employers can ask for proof of vaccination in order to reimburse employees for the time missed from work.
Onsite rapid testing should also be part of the plan.
“Workplace rapid antigen testing is underemployed,” says Anandasagar. Compared to the “brain-tickling” PCR tests used by many health units, he says rapid antigen testing on the site is as easy as brushing one’s teeth. Results are available in 15 minutes.
Another key feature of rapid onsite testing is that public health personnel aren’t required to supervise. While that offers employers flexibility and gives workers the quick results they want, those benefits must be balanced against employer responsibilities.
Anandasagar lists operational risks, human resources risks and testing costs as some of those responsibilities. Also, there is a requirement to protect the private health information of the employee or site visitor being tested, and possible civil exposure risks should there be an incident that results in potential insurance or worker compensation claims.
In the event of such an incident, however, a good health and safety plan that is actively managed could be a saving grace. Gupta says health authorities don’t want to shut a site down. Furthermore, appeals take longer than typical shut down periods.
“Showing that you are professional, proactive and genuinely concerned really makes a difference when negotiating with a public health officer.
“We all get sloppy after a period of time,” she concludes. The key is not to let one’s guard down.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to firstname.lastname@example.org.