The Lawyer's Daily: Reimagining the workplace: Mitigating cross-jurisdictional risks

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.

As governments now start to relax certain COVID-19-related emergency measures, the reopening and return to the workplace now appears to be in sight. With unemployment rates in Canada at record highs and millions of Canadians on temporary layoffs, job-protected leaves, or modified work conditions, this is much welcome news. However, reopening the economy will be a gradual, cautious and volatile exercise. Indeed, for employers, the recent COVID-19 numbers call for continued vigilance and prudence.

In Canada, it is expected that the number of confirmed cases will soon pass 100,000. Tragically, government figures indicate that approximately 8,000 Canadians have lost their lives to the disease. Ontario and Quebec alone account for about 85 per cent of confirmed cases, and approximately 95 per cent of reported deaths nationwide. Importantly, the risk of exposure to the novel coronavirus remains “high” for all Canadians.

Globally, the world is approaching 7.5 million confirmed cases of COVID-19, with over 400,000 reported deaths. The World Health Organization has warned that it could take up to five years before the pandemic is under control on a planetary scale.

Reimagining workplaces across borders

Businesses in Canada and throughout the world now face one of their greatest pandemic challenges yet: reopening physical workplaces in a safe, efficient, and legally compliant manner. Unsettlingly, if we get it wrong, public health officials have warned that a second wave of COVID-19 could be much worse than the first.

As a result, governments and businesses across jurisdictions have been working tirelessly to reimagine workplaces, with the goal of adapting them to a COVID-19 world — what some have dubbed as “the new normal.” In so doing, employers and employees have had to quickly adapt to novel ways of working, doing business and interacting with one another on a daily basis.

In particular, employers operating across borders may face unique challenges, as required and recommended measures inevitably vary between jurisdictions. In Canada alone, employers know too well that employment-related requirements, including health and safety, vary between 14 jurisdictions. And, beyond our borders, COVID-19-related obligations necessarily differ from one country to another, depending largely on the application of local laws and the impact of the disease regionally.

To properly navigate this terrain, employers with a cross-jurisdictional presence are now looking for creative ways to lawfully streamline their approach to health and safety, all the while maintaining operational capacity during the COVID-19 crisis. Anticipating and addressing key issues, like how an employer can screen its employees, how to decide which employees should return to the workplace first, or how to properly manage work refusals, will be paramount in maintaining safe workplaces.

As a starting point to prepare for what lies ahead, employers operating on a global scale should consider what innovative cross-jurisdictional comparative legal tools are at their disposal. These can for instance include Norton Rose Fulbright Canada’s publicly available Global interactive guide on returning to the workplace: Comparative perspectives across nine jurisdictions, which provides guidance on 10 key issues that employers commonly face today. This guide covers jurisdictions in North America, Europe and Oceania. As always, to further discuss any workplace, industry or jurisdiction-specific specific concerns, employers would be wise to seek legal counsel.

Preparing a game plan for workplace

In today’s turbulent world, employers are exploring ways to ensure that health and safety measures are durable, adaptable and appropriate in the circumstances. In particular, employers are being called to consider what measures are needed to reduce and/or prevent the spread of the illness in the workplace, instill confidence in employees that it is safe to attend work and minimize and/or prevent operational interruptions that could be caused by workplace infections. For employers already or soon-to-be reopening their doors in Canada, this means taking every precaution reasonable in the circumstances to protect health and safety in the workplace. This obligation extends to reasonably protecting employees from communicable illnesses such as COVID-19 and includes any industry-specific and jurisdictional requirements put in place due to the pandemic.

To identify and implement appropriate measures to prevent the spread of COVID-19 in the workplace, the prudent employer would prepare a plan for mitigating and managing risks. Usually, the first step of this exercise is to conduct a physical walkthrough of the workplace to identify workplace risks and hazards related to the possibility of transmission. Risks and hazards can include personal contact, equipment contact, surface contact and non-occupational and external factors.

Once identified, risks should then be assessed and prioritized based on the likelihood of infection at work.

The third step of risk mitigation involves creating strategies to minimize or eliminate identified risks, with initial focus dedicated to high-risk sources of transmission. A good tip when crafting a mitigation strategy is to develop a risk mitigation chart, identifying: (i) risk factors; (ii) the likelihood the risk factor will cause transmission or infection; (iii) whether the risk factor can be eliminated; and (iv) how the risk factor will be mitigated.

Again, seeking legal advice, and making use of guidance materials geared specifically to the employer community, such as Reopening the workplace while mitigating pandemic risks: A roadmap for employers, can prove to be particularly helpful in the uncertain months that lie ahead.

Looking forward

In addition to health and safety obligations, employers should also remain alive to other legal considerations that may have been heightened as a result of COVID-19, including in the areas of privacy, human rights and employment standards.

That being said, not every workplace challenge can be fixed by our legal regime. The transmission of COVID-19 is and will undoubtedly continue to often be elusive, affecting all walks of life. Indeed, Canada’s governor general commented that “… this virus does not know borders, or timeline, colour or nationality. It zeros in on the most vulnerable, but it lives everywhere. Not just on people, but on doorknobs and table counters. It is a clever beast that we cannot underestimate.”

As we approach month five of the pandemic, it will therefore be vital, perhaps now more than ever, for management and human resources teams to enhance transparency, communication and consultation processes, in particular around enhanced safety measures taken in their workplaces.