Governments and businesses across the globe are attempting to quickly formulate an effective response to COVID-19, whose reach has quickly expanded to over 71 countries. Recent reports suggest that COVID-19 will continue to adversely impact businesses in many ways in the coming weeks and months. This Legal Update provides guidance to businesses regarding legal issues arising from COVID-19 and key considerations when preparing a COVID-19 response plan.
Preparing a COVID-19 Response Plan
(a) Establish a COVID-19 Response Team
We recommend that your business identify a team with overall responsibility for COVID-19 response planning. The response team should include representatives from your business with expertise in law, human resources, health and safety, operations and communications. Your response team will have responsibility for:
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developing an overall communications and contingency plan, co-ordinating the plan with the organization’s global response plan (if applicable) and updating the plan as COVID-19 continues to evolve;
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preparing a detailed contact list of essential employees, contractors, vendors, suppliers, service providers and any other key contacts;
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acting as a liaison with affiliated companies, employees, contractors, vendors, suppliers, service providers, customers, insurance providers, regulators, government and public health authorities;
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determining the triggers for what has to happen, when and by whom within your business in response to COVID-19, including:
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who is authorized to make decisions and at what level in the business;
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who is responsible for issuing communications, who will authorize the message to be communicated and how such messages will be communicated; and
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considering the extent to which your business can sustain disruptions to normal operations, including how staffing levels will be met, and the impact on employees, contractors, suppliers, service providers and customers.
Considerations for Businesses
(a) Employees
Employers have a legal obligation to take all precautions reasonable in the circumstances to protect their employees. In response to COVID-19, your organization’s response team should consider the following:
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Travel Restrictions. Cancel or postpone non-essential work-related travel to high risk jurisdictions. Caution employees against personal travel to high risk jurisdictions. Require employees to report if they are planning travel to a high risk jurisdiction. Monitor federal/provincial government travel and public health advisories. Review travel insurance policies to determine whether there are any limitations on coverage for travel to or through high risk jurisdictions.
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Reporting Requirements. Require employees returning from a high risk jurisdiction or living with someone who has done so, or who believes that they may have been exposed to COVID-19, to immediately report to the employer (even if they are asymptomatic), to work remotely for 14 days and to return to work only if they are asymptomatic at the conclusion of that 14 day period and cleared by a medical professional to return to work.
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Leave of Absence and Vacation Policies. Review policies to determine whether your organization can cancel scheduled vacations/leaves of absence due to staff shortages caused by COVID-19, or require employees to take vacation or paid/unpaid leaves of absence if staffing needs are reduced due to COVID-19. Consider also whether employees can be laid-off temporarily.
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Cross-Training and Remote Work Arrangements. Consider whether employees can be cross-trained to ensure sufficient staffing to cover COVID-19 related absences or whether work can be temporarily outsourced. Ensure that your organization’s computer network can support staff working remotely.
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Promote Everyday Preventative Measures. Advise employees that if they have symptoms of a respiratory illness of any kind (e.g. fever, coughing, shortness of breath, etc.) they should stay home and seek medical treatment. Encourage employees to wash hands often with soap and water for at least 20 seconds; avoid touching their eyes, nose and mouth with unwashed hands, and to cover a cough or sneeze with a tissue, or cough/sneeze into their sleeve if a tissue is not available. Ensure that alcohol-based hand sanitizers with at least 60% alcohol are readily available. Consider retaining a medical expert to advise your response team on additional safeguards to minimize spread of COVID-19.
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Investigate Work Refusals. Employees have a statutory right to refuse to work or perform a task where it is likely to endanger their health or put them at risk. If an employer receives a COVID-19 related work refusal, it is generally required to investigate. Employees who exercise a legitimate health and safety work refusal cannot be disciplined, threatened or dismissed.
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Discrimination, Harassment, Accommodation. Do not make assumptions about employees based on stereotypes. Employees must not be subject to discrimination or harassment based on their connection to a high risk jurisdiction (e.g. race, ethnicity, or place of origin). Accommodate COVID-19 related medical conditions/absences to the point of undue hardship.
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Maintain Communication. Provide accurate and up to date information regarding COVID-19 and measures the organization is taking to respond. Consider establishing a telephone “hotline” and/or web portal for employees to facilitate communication if employees cannot attend at the workplace....
This is excerpted from the 3 March 2020 article by McCarthy Tétrault LLP.