Returning to the Workplace What Employers Need To

Returning to the Workplace: What Employers Need To Know Automate Brian Wasyliw & Michael Sherrard August ##, 2020 250 Yonge Street Suite 3300 Toronto, Ontario M 5 B 2 L 7 Tel 416. 603. 0700 Fax 416. 6035 24 Hour 416. 420. 0738 www. sherrardkuzz. com

Agenda n Provincial COVID-19 Timelines n Ontario Reg. 228/20 - Infectious Disease Emergency Leave n Return to Work Guidelines n Work Refusal n Absenteeism q Age or Pre-Existing Medical Condition q Child or Eldercare n Return to School and Childcare Updates n Dealing with a Case of COVID-19 n Contact Tracing Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 2

Ontario COVID-19 Timeline n March 17 – Ontario declares state of emergency in response to pandemic n March 19 – Bill 186 and Bill 187 passed n March 24 – Ontario Regulation 82/20 released mandating closure of non-essential businesses n April 3 – Order regarding essential businesses n May 29 – Ontario Regulation 228/20 filed n July 7 – Bill 195 introduced n July 24 - Declaration of Emergency ended Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 3

Deemed Termination n A temporary layoff becomes a termination if an employee is laid-off for more than: q 13 weeks in any period of 20 consecutive weeks OR q 35 weeks in a period of 52 consecutive weeks if certain conditions are met n An employee is then entitled to notice or pay in lieu of notice Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 4

A New COVID-19 Regulation n On May 29, 2020, a new regulation was enacted under Ontario’s Employment Standards Act (“ESA”) q O Reg 228/20: Infectious Disease Emergency Leave n If an employee’s hours of work are reduced or eliminated for reasons related to COVID-19, the employee is deemed to be on an infectious disease emergency leave for the COVID-19 period (as defined) Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 5

Ontario Reg. 228/20 n Retroactive to March 1, 2020 and continues in effect until six weeks after the declared emergency under the Emergency Management and Civil Protection Act (“EMPCA”) is terminated or disallowed n Ontario’s declared emergency ended July 24 th n Employers should be aware all weeks after September 4 th are considered layoff weeks – may result in deemed termination Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 6

Return to Work Guidelines n General obligation under Ontario’s Occupational Health and Safety Act to take all reasonable steps to protect the health and safety of workers n Regulations enacted under the EMPCA extend this obligation to include: “the person responsible for a place of business that is open shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting. ” n Consider who in your organization will be responsible for monitoring and compliance Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 7

Hygiene Protocols n Hygiene protocols should be tailored to the specific workplace. An employer may consider: q Posting guidelines (e. g. , regarding handwashing) q Increasing regular cleaning and disinfecting throughout the workplace q Implementing cleaning or disinfecting of shared equipment q Providing sanitizer at or near each workstation and throughout common areas in the workplace Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 8

Physical Distancing - The Workplace n Limit the number of employees who may attend the workplace at any time n Reduce or eliminate shared equipment or items that cannot be easily cleaned n Increase space between workstations to facilitate physical distancing of at least 2 metres q If this is not possible, install physical barriers (e. g. , plexiglass) n Use floor markings to encourage one-way traffic and physical distancing Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 9

Physical Distancing - Work Conditions n Assign one employee per workstation n Group employees into “teams” to: q Assist in contract tracing q More easily contain an outbreak through isolation n Eliminate non-essential and in-person meetings q Schedule meetings on a video conferencing service (e. g. , Zoom) or conference call n Stagger start, break, and lunch times Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 10

Personal Protective Equipment n Many municipalities (e. g. , Toronto) have by-laws requiring face coverings in public establishments n If physical distancing cannot be maintained, employer may also implement own personal protective equipment (“PPE”) policy to reduce potential workplace transmission Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 11

Personal Protective Equipment n Before employees are back at work: q Communicate PPE requirements and policies q Source PPE that will be required n Employees may require training on how to appropriately use and dispose of PPE Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 12

Inovata Foods Corp. v A Director under the Occupational Health and Safety Act, and MLTSD n Ontario Labour Relations Board decided that although a face shield is considered PPE, it is not sufficient to protect a worker n Face shield alone not taking “every reasonable precaution in the circumstances to protect workers from the hazard of COVID-19” Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 13

Inovata Foods Corp. v A Director under the Occupational Health and Safety Act, and MLTSD “At present, it clearly appears that the risks of not masking at all would outweigh the risks of masking. While there is a risk of contamination from touching face masks while working on the production line, it is subject to mitigation and the much greater risk would appear to be to have no mask wearing at all. ” Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 14

Other Precautions n Entry points q Different entry points for different work groups q Distancing protocols in elevators n Screening protocols with appropriate privacy safeguards q Health screening questionnaire q Health notice at entry points q Temperature screening Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 15

Work Refusal - Fear of COVID-19 n An employee may refuse to work if they hold a bona fide belief the potential spread of COVID-19 in the workplace constitutes a risk to their health and safety q Educate employee on precautions taken in workplace q If continues to refuse, treat as any other health and safety work refusal q Employer must investigate (include joint health and safety committee member) q If employer determines no risk and employee continues to refuse, contact MLTSD Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 16

Absenteeism - Age or Pre-Existing Medical Condition n Employee may be entitled to a statutorily protected leave under employment standards legislation, or an accommodation under human rights legislation n If an employee requests a COVID-19 leave, an employer can request information reasonable in the circumstance to verify the need for the leave q Cannot request a medical note in most jurisdictions Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 17

Absenteeism - Childcare or Eldercare n If caring for a sick relative, employee may qualify for job protected leave under the Ontario ESA q An employer cannot reprise against an employee for being on a protected leave under the ESA n An employee may request a leave to stay home with a child or parent q Based on the reason - may qualify for job protected leave under the ESA or accommodation under the Human Rights Code Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 18

Return to School Update n On July 30 th the Ontario government announced the safe reopening of schools n Elementary schools (Kindergarten to grade 8) will reopen province-wide with in-class instruction 5 days a week n Secondary schools in low risk areas will also reopen 5 days a week n Secondary schools in higher risk areas will open with part -time attendance – in-person and online n Students in grades 4 -12 and all school staff must wear a mask Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 19

Childcare Updates n On July 30 th the Ontario government announced its plan to allow licensed child care centers to open at full capacity starting September 1 st q All staff must wear masks q Children and staff must be screened before entry q Attendance records will be maintained for contact tracing Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 20

Dealing with a Case of COVID-19 n An employee with a probable or confirmed case of COVID-19 is required to self-isolate for 14 days n During self-isolation, the employee: q Should be placed on a medical leave of absence q Will be able to access paid sick leave or disability benefits available for short-term illness Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 21

Dealing with a Case of COVID-19 n The employer should: q Investigate with whom in the workplace the employee was in close contact within three days prior to becoming symptomatic q Privately speak to any co-worker with whom the employee may have had close contact n These employees should isolate for 14 days q If the COVID-19 diagnosis is confirmed, disclose to joint health and safety committee and any trade union Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 22

Contact Tracing n Voluntary, voluntary n A part of the overall public health effort to limit the spread of COVID-19 n Continue to follow all public health guidelines n App does not replace manual contact tracing by local public health authorities n COVID Alert does not replace medical advice. n Available for i. OS and Android Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 23

How Can SK Help? n There is much that can and should be done now. n We can assist you to: q Review and revise existing policies and procedures q Develop a return to work plan n See, for example, SK’s COVID-19 Return to Work Considerations Briefing Note (www. sherrardkuzz. com) q Manage leave and accommodation requests related to COVID-19 q Respond to employee work refusals Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 24

Questions? Sherrard Kuzz LLP, Employment & Labour Lawyers Automate – Returning to the Workplace - Current as of August ##, 2020 Main 416. 603. 0700 / 24 Hour 416. 420. 0738 / www. sherrardkuzz. com 25

250 Yonge Street, Suite 3300 Toronto, Ontario, Canada M 5 B 2 L 7 416. 603. 0700 Phone 416. 420. 0738 24 Hour 416. 6035 Fax www. sherrardkuzz. com 26

n The information contained in this presentation/article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This presentation/article is current as of August ## 2020 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the presentation/article is prepared, but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP (or other counsel). 27