We previously discussed whether employers could make obtaining the COVID-19 vaccination mandatory for their employees. Notwithstanding the uncertainty surrounding whether certain workplaces may be able to one day require that their employees be vaccinated, employers have a general duty under occupational health and safety (“OHS”) laws to provide a safe and healthy working environment for their workers, as well as for clients, customers, suppliers and/or any contractors or others physically present or attending their premises (collectively referred to as “patrons”). In Alberta, OHS laws for provincially-regulated workplaces are primarily found in the Occupational Health and Safety Act¹Occupational Health and Safety Act, SA 2017, c O-2.1, s. 3(1)(a). (the “Act”).

With both an ongoing threat of a “third wave” of COVID-19 infections and the Alberta government’s tentative and staggered re-opening plan, Alberta businesses and employers will likely be contemplating how to best provide a safe and healthy working environment for their employees to minimize the risk of COVID-19 transmission in the workplace.

OHS MASK REQUIREMENTS

The use of face masks is mandatory across Alberta in indoor public places, places of worship and indoor workplaces (subject to certain potential exemptions for individuals). For workers, the use of masks is therefore mandatory in all indoor workplaces and facilities outside the home, except when an employee is: (1) working alone in an office, or (2) in a safely distanced cubicle or with a barrier in place. Alberta OHS officers now have the authority (as of January 27, 2021) to issue tickets for businesses not complying with mask requirements in indoor workplaces, and may issue tickets to employers, supervisors or workers in the amount of $1,000 for non-compliance²More information on OHS masking requirements in Alberta can be found at: https://ohs-pubstore.labour.alberta.ca/covid19-24..

OHS COVID-19 LEGISLATION AND GUIDELINES

Excepting Alberta public health orders (issued by the Alberta Chief Medical Officer of Health (“CMOH”)³A list of active public health orders in Alberta can be found here: https://www.alberta.ca/covid-19-orders-and-legislation.aspx#jumplinks-0.), the Alberta government has not passed any specific OHS legislation or amended existing OHS laws to address the issue of the workplace transmission of COVID-19.

CMOH Order 02-21⁴CMOH Order 02-21 can be found at: https://www.alberta.ca/covid-19-orders-and-legislation.aspx., which is effective as of February 8, 2021, includes a number of public health measures that apply to businesses in Alberta, including:

• the mandatory work from home order (unless the worker’s physical presence at a workplace is required to effectively operate the workplace);
• mandatory masking requirements for all indoor public places (including workplaces);
• mandatory conditions for restaurants, cafes, bars and pubs to resume dine-in operations; and
• requirements for businesses to close, reduce capacity or limit their in-person access.

To date, OHS-specific directions relating to COVID-19 transmission largely consist of “best practices” information and public health guidelines. Alberta OHS “best practices” for preventing COVID-19 transmission in the workplace include:

• Employers conducting a hazard assessment to assess potential and existing hazards in the workplace (COVID-19 would be considered a known workplace hazard under OHS laws);
• Controlling hazards that cannot be eliminated, with a hierarchy of controls implemented as follows:
  • engineering controls (e.g. plexiglass barriers);
  • administrative controls (e.g. staggering break times); and
  • personal protective equipment (“PPE”) (e.g. gloves, face shields, and respirators);
• Supervisors ensuring all hazard controls are implemented by workers and that workers wear the required PPE;
• Developing and implementing a workplace rapid response plan (outbreak management) in the event of workers with symptoms of, or a positive test result for, COVID-19; and
• Developing and implementing a workplace COVID-19 incident reporting policy for reporting to Alberta OHS (which can be done using the OHS online reporting portal here)⁵More information on Alberta OHS COVID-19 incident reporting requirements can be found at: https://ohs-pubstore.labour.alberta.ca/covid19-19..

COVID-19 REOPENING PLANS

Employers looking to reopen or increase the capacity of their non-remote workforce will have to tailor OHS principles to their specific industry and working environment. In this case, we highly recommend consulting with an experienced employment lawyer in order to properly assess best practices and to determine that occupational requirements for your employees are being met. This is a highly fact-dependent analysis that may vary based on the specific circumstances and context of each business.

Carscallen LLP’S Employment, Labour and Human Rights Expertise

Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee.

Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.

Whether you are an employer with questions about your rights and obligations in the employment relationship, or an employee, any member of our Employment, Labour and Human Rights team can answer any questions you may have.

• 1
  Occupational Health and Safety Act, SA 2017, c O-2.1, s. 3(1)(a).
• 2
  More information on OHS masking requirements in Alberta can be found at: https://ohs-pubstore.labour.alberta.ca/covid19-24.
• 3
  A list of active public health orders in Alberta can be found here: https://www.alberta.ca/covid-19-orders-and-legislation.aspx#jumplinks-0.
• 4
  CMOH Order 02-21 can be found at: https://www.alberta.ca/covid-19-orders-and-legislation.aspx.
• 5
  More information on Alberta OHS COVID-19 incident reporting requirements can be found at: https://ohs-pubstore.labour.alberta.ca/covid19-19.