Returning to Work and Reopening Your Business in the Wake of COVID-19

Unprecedented times have called for unprecedented measures.  Now, we see a flicker of light at the end of tunnel as BC has released its plan for easing the restrictions in place to address the spread of COVID-19.

By mid-May the following services are expected to begin reopening:

• Restoration of health services including elective surgeries, dentistry, physiotherapy, registered massage therapy, chiropractors, physical therapy, and speech therapy.
• The retail sector;
• Hair salons, barbers, and other personal service establishments;
• In-person counselling;
• Restaurants, cafes, pubs, as long as there are sufficient distancing measures;
• Museums, art galleries, libraries;
• Office-based worksites;
• Recreation and sports;
• Parks, beaches, and outdoor spaces;
• Transit services; and
• Childcare.

With more businesses reopening and employees transitioning back into the workplace from working at home, some employees are anxious about going back to work.  They are worried their health could be at risk and wondering if they have any rights not to return.

There really is not a choice.  If the workplace is safe, the employee must go back to work.

As long as the employer has met the safety requirements and precautions that the provincial health authorities and WorkSafeBC have put forward, the employee is required to return.

That notion that many employees have that they can simply decide not to come into work is incorrect.

In cases where the workplace is safe and employers have implemented specific guidelines for keeping staff and clients safe, if an employee chooses not to go to work, the employer will be well within their rights to consider that a form of misconduct or a resignation.  As a result, the employee may lose their job and any benefit they are receiving from the government.

Employees should ask questions about the protections that will be provided.  Common protections include frequent cleaning, physical distancing measures, barriers and personal protective equipment, and reminding clients not to come in for services when sick and clear policies about not attending work when displaying symptoms of illness.

There is a formal process for an employee to refuse unsafe work.

1. The employee must immediately report the unsafe condition to the employer.
   • The employer must investigate the report and either remedy the unsafe condition or determine that the report is not valid.
2. If this does not resolve the matter, the employer must further investigate with:
   • An employee representative of the joint health and safety committee; or
   • An employee selected by the union; or
   • If there is no union and no joint health a safety committee, an employee selected by the employee making the report.
3. If this does not resolve the matter, the employer and the employee must notify WorkSafeBC who will investigate the matter and determine if the report is valid or if the employer is required to take necessary steps to remedy the unsafe condition. The report by the WorkSafeBC investigator is binding on both the Employer and the employee.

During the process, the employee should be assigned temporary alternative work (i.e. working from home) until the matter is resolved.

One question that arises is, as an employer, can I refuse to take back an employee who has been diagnosed with COVID-19?  The short answer is no.  The current understanding of COVID-19 is that if an individual has been tested and diagnosed with COVID-19, fully recovers and tests negative, they are free of the virus and not a risk to transmit the disease to others.  In refusing to take back the employee, the employer is terminating the employment relationship.  In addition, to the extent possible, the employer must protect the identity of any employee that contracts COVID-19.

The government has said that different sectors will be responsible for preparing and submitting industry-specific guidelines for keeping employees and clients safe, with support from WorkSafeBC.  Individual businesses will also have to prove they can implement those guidelines before reopening.  This will include written policies and procedures, catered to the specific business, aimed at reducing the risk of transmission of COVID-19.  What is required in an office environment will be very different than what is required in a restaurant.

We are on the horizon of the new normal.