The Conference Board of Canada has released Working Through COVID-19 – Return to Work Survey. The survey results are from May 11, 2020 and may not reflect the current state of the re-opening world, particularly as the Ontario government announced on May 19, 2020 that additional workplaces could reopen as part of its Stage 1 Framework and issued Workplace Safety Guidelines to assist in the reopening process.  The survey is very helpful in considering how employers are planning on managing the return to the workplace process and it will be interesting to see the results if the survey is updated.

Among other things, the Survey reports that:

  • Only 8% of workplaces are fully prepared to reopen. 48% identified as “somewhat prepared” and 39% as “nearly prepared”.

This is an area where one would expect these numbers to move towards the “fully prepared” end of the spectrum, following the government’s reopening announcement of certain businesses and issuance of guidelines,

  • Many employers were forced to either move to a fully or partially remote workforce (where possible). 40% of employers surveyed indicated that they would be requiring those employees that were working remotely to return to the physical workplace in some capacity. 4% of those surveyed indicated that they would require employees to return to the physical workplace full time while 30% said they would continue with remote work and 27% said they would give the employee the choice of continuing to work from home or return to the workplace.

Facebook recently announced that they will allow many of its employees to work from home permanently (note that Facebook’s Remote Workers Face Pay Cuts If They Move To Cheaper Locations) and a number of other companies have either extended their WFH arrangements (see: White-Collar Companies Race to Be Last to Return to the Office). Adding some Canadian perspective, Shopify permanently moves to work-from-home model.

The April 2020 Labour Force Survey made note that an additional 3.3 million Canadians who usually worked at a location other than home worked from home in April. Not surprisingly, WFH varied by industry and sector.

Not all employers have the option of moving to a permanent WFH model (at least at this time) and the survey results seem to confirm that.

That being said, many employers who are permitted to reopen should nonetheless consider allowing employees to continue to WFH if practicable and viable. Leaving aside that this may assist in complying with health and safety obligations associated with returning the employee to the physical workplace, it might also be a means of managing leave application issues under the Employment Standards Act, 2000 and minimize somewhat the risk of family status accommodation issues associated with a return to the workplace under the Human Rights Code.

  • In terms of returning employees to work, 96% of employers surveyed said that they would “exempt” employees with a “high risk of illness” from returning to the workplace, while 86% said they would exempt employees with caregiving responsibilities from returning to the workplace. 51% of those surveyed said they would exempt employees from returning to the workplace if the employee felt uncomfortable doing so.

A significant issue in this pandemic is commuting – for example, employees who are required to take public transit to work and whether the employer can require them to do so. The survey indicates that 50% of employers surveyed said they would not require employees to return to the workplace where they could not commute to work while physically distancing.

  • More than half of employers will be screening employees with a questionnaire upon arrival at the workplace.

We have all seen these screening questionnaires that include active (questions) and passive (signs) screening measures for symptoms of COVID-19. For example, Ottawa Public Health has an assessment tool for businesses. As you know, the list of symptoms associated with COVID-19 has evolved. You will also be aware of the government’s online self-assessment tool.

It is surprising that there are any employers who are not at a minimum conducting some sort of basic screening before employees (and others) attend in the workplace. The questions should be based on current public health guidance. Conducting minimally invasive active and passive screening is likely a best practice at this time.

  • 1 in 4 will also be temperature screening at the workplace.

One of the primary COVID-19 symptoms is elevated body temperature and, as such, many employers are screening temperature of all those accessing their workplace. The position of the Ontario Human Rights Commission is that medical assessments (including temperature screening) to verify or determine an employee’s fitness to perform on the job duties may be permissible under the Ontario Human Rights Code. However, these tests should be conducted in conjunction with other active COVID-19 screening measures since there are many reasons for an elevated temperature.

The Commission has issued a policy statement on the COVID-19 pandemic as well as COVID-19 and Ontario’s Human Rights Code – Questions and Answers.

Depending on the province in which the employer carries on business, privacy issues may also be triggered where the employer conducts temperature tests on employees. Ontario does not have private sector privacy legislation. That said, employers who decide to temperature screen everyone coming into their workplace should anonymize the information, use any information gather solely for the purposes for which it was gathered (i.e. to determine if the individual should be allowed to enter the workplace) and safeguarded against unauthorized use or disclosure.  Any privacy concerns will need to be balanced against other important objectives including under the OHSA.