Be ready for new employment realities in the post-COVID world

By LegalMatters Staff • With the business world slowly emerging from isolation it is important to prepare for what lies ahead and heed the lessons learned from the pandemic, says Toronto-area employment lawyer and mediator Stuart Rudner.

Rudner, founder and principal at Rudner Law, says employers can now turn their attention toward facing the new working reality brought about by COVID-19.

“It’s nice to see the conversation changing. We’re not talking about layoffs and pay cuts anymore, we’re talking about getting back to business and recalling employees,” he tells LegalMattersCanada.ca. “It’s a lot more positive than it was a few weeks ago.”

The speed at which measures were put in place to combat the spread of the coronavirus took the working world by surprise, Rudner says. 

Unprecedented situation

“I have been practising for 21 years and I have never seen a situation like this. People refer to it as unprecedented, which sounds like hyperbole but it’s not,” he says. “Some people try to compare it to the recession in 2009 but the big difference there was it happened over an extended period and businesses had time to plan or at least brace for it.

“In this case, the country changed overnight and everything came to a halt,” Rudner adds. “There was no sense that within days the vast majority of businesses would be shut down.”

Across Canada, businesses have been allowed to open on a gradual basis, with strict guidelines in place.

“Ontario is being very cautious which is great,” says Rudner. “There’s been a lot of information released about safety at work and how to ensure that when businesses reopen, employee safety is being properly managed.”

He says one of the most common questions his firm has been asked is how to bring back workers.

Few restrictions

“Most businesses are not accustomed to layoffs and recalls. Employers want to know if they have to recall everyone or can they pick and choose and how that works,” says Rudner. “If your workplace is unionized you probably have a collective agreement that has a very specific procedure for recalls but if not, then you have very few restrictions.

“It doesn’t have to be based on seniority. You can decide who you want to bring back and when for whatever reasons you choose, as long as you do not breach Human Rights legislation or engage in a reprisal.

“Employers must follow the human rights code,” Rudner says. “Particularly relevant at this time is that companies cannot refuse to recall someone because they tested positive for COVID-19 previously. Obviously, if a worker is still infected and in isolation, they are not going to be able to return to work.”

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He notes that when an employee is recalled they must report to work unless they have a legitimate health and safety concern or need for accommodation.

“I have heard from employees who say they are expected back to work but don’t feel it’s safe to leave the house. On the other side, I have had employers say they’ve recalled their employees but some don’t want to return,” Rudner says. “Many people seem to think there is a choice but there really isn’t. It’s no different than if you were working on an ongoing basis. You can’t just decide not to go to work one day unless you have a legitimate reason. If you don’t have a good excuse, and you refuse to go to work, you are essentially abandoning your job.”

Health and safety

Health and safety is, of course, a high priority in the current work environment, Rudner says.

“It starts with the proposition that the employer has a duty to make all reasonable efforts to ensure a safe workplace. They have to ensure they are taking the reasonable steps,” he says. “That standard is not perfection, but all reasonable efforts must be made.”

Rudner advises his clients to start by reviewing their health and safety policies.

“Activate your Health and Safety Committee if you have one. Do a proper assessment of the risk then develop a plan to minimize that risk and communicate it to employees,” he says. “Everyone should understand what policies, processes and practices are being put in place and what the expectations are.”

Communication is critical, Rudner notes, “particularly in the COVID-19 world.”

“Enforce the plan’

“Then you have to enforce the plan. Make sure your employees are complying with those rules and regulations,” he says. “As well, make sure they are clear on what they can do if they think their workplace is unsafe.

“If workplace concerns cannot be addressed to the employee’s satisfaction, they can contact the Ministry of Labour, who will send in an inspector to access the situation,” Rudner adds. “Nobody wants to go through that process and usually if there is ongoing communication you can avoid those situations.”

He says after developing a health and safety plan, the next step is to ensure the workplace is set up properly and the appropriate equipment, such as masks, gloves or other protective gear, is in place.

Every workplace is different, Rudner says, so employers must tailor their business to meet the needs of their workers and customers.

“There is no one silver bullet. It’s very much fact-specific,” he says. “Ideally, people are isolating. Some are working remotely but if that’s not possible, then physical distancing is the next best thing. We’re going to be seeing employers putting lines on the floor to ensure people are separated. Some will use plexiglass barriers. It’s simply a matter of providing the right tools to do the job safely.”

Learn from the experience

In the rush to get work flowing again, Rudner says it’s essential to consider “what have we learned from this experience.”

“The challenge is that this all happened so quickly. Before this fades into history, take the time to debrief. Keep notes as to what has happened and what has worked,” he says. “Then assesses your health and safety policies, your remote work policies, your sick leave policies, and anything else that became relevant. 

“If there’s anything that caused an impediment, fix it so you don’t have the same problems in the future,” Rudner adds. “Hopefully there’s not going to be another pandemic for a long time but something else can occur that could similarly impact the workplace.”For more advice from Rudner Law on dealing with the pandemic, click here.