COVID-19 AND THE CONSTRUCTION INDUSTRY

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COVID-19 and Safety on Your Job Site

COVID-19 and Safety on Your Jobsite
by Attorney Jeremy Power

The outbreak of COVID-19 becoming a pandemic has created havoc in all aspects of society, including and especially the construction world.  In light of the pandemic, Canadian construction industry employers have certain obligations that must be met. They have immediate obligations to protect the health of workers who may be exposed to the virus, and may also face workforce interruptions, either due to employees contracting the virus, or due to supply chain disruption.

Employers, of course, have many questions regarding how to ensure the safety of their workers, and what exactly their obligations are – for this reason, we have provided the following FAQ for our clients:

1. What safety precautions should my job site implement to reduce the risk of COVID-19 transmission?

The exact COVID-19 transmission precautions required depend upon the likelihood of exposure in the workplace. To determine the risk of exposure, a workplace hazard assessment should be conducted, particular to the risk of COVID-19 transmission. Some workplaces (such as construction sites) naturally pose a higher risk than others.

In construction workplaces, reasonable precautions to reduce risk of transmission include:

  • Ensuring that the workplace is clean and hygienic. Commonly touched surfaces and areas should be sanitized, and workers should avoid sharing equipment where possible – though this may be difficult on a construction site, proper workplace gloves will help prevent the spread;
  • Providing employees with information about proper handwashing;
  • Promoting physical distancing within the workplace, meaning:
    • avoiding crowded places and non-essential gatherings (i.e., conduct virtual meetings rather than in-person meetings);
    • avoiding common greetings, such as handshakes;
    • limiting contact with people at higher risk (e.g., older adults and those with pre-existing medical conditions); and
    • keeping a distance of at least two arm’s lengths (approximately two metres) from others, as much as possible;

Further workplace measures to assist in physical distancing may include:

    • staggering start times, breaks, and meal breaks;
    • closing or restricting numbers of people in areas where people gather, such as elevators, lunchrooms and meeting rooms; and
    • limiting unnecessary contact between workers and the public.

Many jurisdictions have implemented restrictions on the number of individuals who can gather at once which are enforced through issuing fines. Workplaces, however, may be exempted from these restrictions if they ensure adequate physical distancing, and ensure any workplace gatherings comply with the following restrictions:

  • Promoting good respiratory hygiene in the workplace by providing facemasks and paper tissues;
  • Placing hand sanitizer in prominent locations and providing single use rubber gloves;
  • Eliminating non-essential business travel; and
  • Reducing the risk of employee-to-employee transmission by:
    • encouraging employees to self-monitor, avoid crowded places and physically distance, even if there is no history of possible exposure to COVID-19;
    • Requiring 14 days of self-isolation from the workplace for any employee who has tested positive for COVID-19, is displaying any of the symptoms of COVID-19 (such as fever, cough, or difficulty breathing), or is awaiting results of a COVID-19 test; and
    • Requiring 14 days of self-isolation from the workplace for any employee who, though asymptomatic, has a history of possible exposure to COVID-19 due to close contact with a person that has tested positive for the virus.

2. Can an employee refuse to perform work that could expose them to COVID-19?

Depending upon the nature of the job site, local government recommendations for COVID-19 precautions and local government shut down requirements, it may be reasonable for an employer to take steps to restrict an employee from physically attending work.

It is reasonable to restrict physical access to the workplace premises to reduce the risk of COVID-19 transmission where:

  • An employee indicates they have tested positive for COVID-19. In this case, the employee should not be allowed to enter the workplace or jobsite premises until they are  no longer exhibiting symptoms of COVID-19 and is no longer potentially infectious;
    • Please note that certain jurisdictions are prohibiting employers from requesting medical notes during the COVID-19 pandemic in an effort to reduce congestion in medical offices.
  • An employee has been exposed to an individual who has tested positive for COVID-19. In this case, the Canadian government recommends that the person exposed self-isolate for 14 days after the last contact; or
  • The employee has recently traveled outside of Canada.

Keep in mind that just because a worker is restricted from attending the workplace does not mean they cannot perform work. Many employers allow their employees to work from home, either on a permanent or temporary basis.

3. If an employee contracts COVID-19 at work, what are the employer’s reporting obligations?

Where an employee becomes infected with COVID-19 at work, the employer may have an obligation to report the illness to:

  • The relevant workers’ compensation board under workers’ compensation legislation;
  • The relevant ministry of labour under Occupational Health and Safety legislation;
  • The workplace joint health and safety committee or health and safety representative; and/or
  • The trade union (if the workplace has a union).

Each jurisdiction has its own rules for what types of illnesses or infections must be reported, the timelines for reporting, and the contents of the employer’s report.

In some jurisdictions, the employer will have an obligation to reinstate the employee after they have recovered from their illness. In other jurisdictions, this obligation does not exist. Regardless of whether a reinstatement obligation exists, the employer will have accommodation obligations, akin to those under human rights legislation, in facilitating an employee’s return to work.

As the pandemic develops, jurisdictions may use their emergency powers to require employers to report workplace transmissions to their public health agencies. Legislation differs by jurisdiction, please consult Cotney Canada LLP should you wish to learn more about the rules of your specific jurisdiction.

4. Does the employer have to notify its workforce if one of their employees develops COVID-19?

Any time there is a credible risk hazard in the workplace, the employer has an obligation to notify affected employees that they are at risk and take steps for hazard prevention.

If an employer is advised that an employee or customer has tested positive for COVID-19, there may be a transmission risk in the workplace. The employer should contact the applicable public health authority to seek advice and direction about how to track the employee’s contact with other employees or customers and develop a plan for a response.

At this stage, the employer should collect only the information necessary to fulfill its notification and reporting obligations, and should request that the affected employee consent to the use and disclosure of their personal information for the purposes of:

  • Notifying any individual who may have been exposed to COVID-19; and
  • Reporting the case of COVID-19 to the applicable government institution.

From a privacy perspective, in notifying any other employees or customers who may have been exposed to COVID-19, employers should:

  • Make reasonable efforts to avoid circulating information that might disclose the identity of the individual who may have caused the COVID-19 transmission risk; and
  • Provide sufficient details to allow the potentially exposed individual to ascertain:
    • the date(s) of their potential exposure; and
    • the extent and circumstances of their potential exposure.

5. Can an employee sue their employer if they contract COVID-19?

In most cases, no.

Workers’ compensation legislation provides for a no-fault compensation plan to workers who have work-related illnesses or injuries. If the worker qualifies for workers’ compensation leave, they will be able collect workers’ compensation benefits during their leave and will not be able to bring a legal action against their employer.

Each jurisdiction has its own specific workers’ compensation legislation, reach out to Cotney Canada LLP to check the prevailing legislation for any exceptions to this general principle.

Written by Jeremy Power, a lawyer in Cotney Construction Law’s Toronto office. To contact Jeremy, please email  jpower@cotneycl.com.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.