Heigh Ho, Heigh Ho, Its Back to Work We Go – Employer Return-to-Work Considerations in the Post COVID-19 Era (Part 1 of 4)
Part 1: The Who, What, When, Where and How of Returning to Work
It used to be that the concerns about returning to work after an employee was away for an extended time from the office focused only on things like, allowing employees the time to catch up on e-mails and voicemails, updating them on new technology, introducing them to different methods of performing the work, or getting medical graduated return to work plans signed off ( if applicable). But in the post-COVID-19 work world, employers must be ready to face the new challenges of what a return to work entails. With daily press conferences and briefings people have a heightened awareness, and in some cases fear, about what the current environment looks like. With that in mind, as stay-at-home orders and restrictions start to lift and more businesses begin to open and resume “regular” operations, it’s important for employers to start putting return-to-work plans and protocols in place.
In this blog we set out the first in our 4-part series of guides to assist employers in determining what issues and questions they will need to consider, and how best to address them before the first employee arrives back at work. Keep in mind, however, that any post-COVID return to work plan will be a living document. Adjustments will be made as matters and conditions change
In response to the various orders and restrictions introduced in response to the COVID-19 pandemic, non-essential businesses have largely transitioned their employees to remote work arrangements or shut down portions of their business and placed employees on leave or temporary layoff. Once businesses are allowed to re-open and return to operations it will not be an instantaneous 0-100%scenario. The majority of businesses will not be able to return to “normal” or “regular” operations immediately as a result of supply issues or functional restrictions to comply with ongoing protective measures such as social distancing. For this reason, employers should consider the following:
(i) Who should be recalled from layoff or returned to the workplace first?
The return of workers to the workplace will, no doubt, need to be staggered depending on:
a) the business operations;
b) the business demands;
c) resources; and
d) accommodation considerations (more to come on this in Part 3 of this Series).
As appropriate, staggering employees across functional groups will allow employers to provide coverage across the various work roles and responsibilities. In unionized environments, the collective agreement may dictate the order in which employees must be recalled to work. Employers must therefore review the applicable provisions accordingly.
(ii) When should employees be recalled from layoff or returned to the workplace?
a) Recalling employees on temporary layoff.
In order to avoid triggering termination entitlements, employees should always be returned to work prior to the expiry of the applicable temporary layoff period set out in the Employment Standards Act or, in unionized environments, the applicable period set out in the Collective Bargaining Agreement.
b) Returning those who worked remotely.
The return of workers who worked remotely will likely also need to be staggered since not all employees identified as immediately needed may be able to be returned all at once. Employers will have to take into consideration things like:
the availability and limitation of public transportation for employees to get to work;
social/physical distancing restrictions that may remain in place; and
restrictions imposed by the physical workspace itself.
Managing the number of workers in your workplace at any given time will be critical to protecting employees and ensuring workplace health and safety. Where an employer has control over the entirety of their work location (including entrances and bathroom facilities) determining an appropriate return to work schedule will be easier. Where, however, an employer does not have total control over their location and consideration has to be given to the use of common spaces (office building lobbies, reception areas, elevators, bathroom facilities, etc.) employers will have to consult with their landlord to determine what, if any, restrictions may be imposed. For example, has the landlord of your building restricted use of the elevator to a limited number of people per trip? How will physical distancing be managed in common areas such as the lobby or common bathroom facilities?
(iii) How does an employer recall those employees that were placed on temporary layoff?
Employers should issue written recall notices to their employees which set out the date and time that the employee is expected to return to work. To the extent there is any change to the employee’s work duties, schedule or location to address physical distancing requirements or other COVID-related measures, these should be identified in the recall notice. Employees should also be advised that it is their responsibility to inform Service Canada of their recall to work which will impact their ability to continue to receive EI or CERB payments. Finally, the recall notice should outline the consequences in the event the employee does not return to work as directed.
(iv) What will the work-day look like for those employees who return to the workplace?
For non-unionized employees, employers may enter into agreements directly with their employees to stagger their start and finish times which will allow employees to travel to work outside of peak times and minimize crowding in common work areas. Employers may also consider the implementation of flexible work arrangements such as part-time in-person work attendance and, as appropriate, ongoing remote work arrangements. For unionized work environments, making changes to employees’ shift schedules will likely require discussions and consent of the union and may not be unilaterally permitted.
(v) What will the workplace look like?
In some cases, adjustments will need to be made to the physical set-up of the workspace to allow for physical distancing requirements or guidelines. Desks may need to be moved and special purpose rooms such as conference or meeting rooms may need to be converted to individual or shared office space. Common areas such as lunchrooms and locker rooms will likely require the posting of maximum capacity requirements or will be closed to employees completely on a temporary basis. With the weather getting better employers may be able to accommodate an eating area in a patio or outdoor space which does not require the same level of cleaning as other contact surfaces such as countertops, refrigerators and microwaves or tables. Floor markings may be required to delineate social distance spacing. Additional measures such as plexi-glass or other partitions may be needed to separate employees from one another or visitors to the workplace. Additional health and safety signage may need to be placed in common areas reminding employees of social distancing measures, proper hygiene, and other COVID-19 related information. Finally, dress codes may need to be relaxed in order to facilitate the use of necessary personal protective equipment.
(vi) What steps need to be taken before employees on remote work arrangements can return to the office?
In some cases, employees have been working from home using company equipment borrowed from the workplace and have been provided remote access to confidential and proprietary company information to allow them to continue to perform their regular duties. This equipment will need to be returned to the office and installed prior to the employees first day back. It is recommended that employers establish a schedule for employees to return any company-owned equipment (during the weekday or on weekends) that ensures any necessary resources are available (i.e., building elevators, a company representative to oversee the re-installation) and complies with any ongoing social/physical distancing requirements. Employers will also have to ensure reasonable steps are taken to clean and sanitize the returned equipment before workers return to the workplace.
Regarding the return of confidential information and materials, employers may wish to have their employees execute written acknowledgements that they have returned all documents and information to the workplace and have not maintained copies of any confidential information at their home or on any personal computer or device. Further, employers may need to take measures to remove remote access to confidential information and materials that was previously granted.
(vii) What other employer communications need to be prepared?
Asking people to return to the workplace will involve more than simply advising them of the date for their first day back at the workplace. The written notice to all employees (regardless of whether they were away on layoff or remote work) should also inform employees of any screening measures in place, attach any new or amended policies[i], reference new health and safety practices to address COVID-19[ii], including training schedules, and provide a contact person for any questions they may have.
Where employees have used sick leave or vacation time during their absence from the office, written notice should be provided to the employees which confirms the time credited and what sick leave and/or vacation time remains available for the balance of the year upon their return to the workplace.
The world continues to be fluid and adjustments are made daily to adjust to the change in circumstances and understanding of the COVID-19 virus. These recommendations, and those set out throughout this blog series cannot possibly address every concern of every workplace. Each workplace will have their own unique concerns and issues to consider and address and flexibility will be key to adapt as matters evolve and more work and business restrictions are removed.
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Please stay tuned for parts 2, 3 and 4 of this series which will cover health and safety considerations, work refusals and policies and protocols.
By Cynthia Ingram & Patrizia Piccolo
[i] This will be discussed further in Part 4 of our Return to Work series.
[ii] This will be discussed further in Part 2 of our Return to Work series.
