As an employer, you are probably preparing for the reopening of the workplace in a pandemic setting and actively planning for your employees’ return to work. To help you in your thought process and preparations, we have prepared a list of items that you should address or consider in order to make the return to work as safe and effective as possible. While we don’t claim that ours is an exhaustive list, it does provide a general overview of things to consider before you resume your activities. Note that each business and industry is different and will need a specifically tailored plan. Our professionals are available to help you implement your return-to-work plan. Key planning steps Risk Assessment Before your employees return to work, conduct a site inspection to identify potential COVID-19 transmission or contamination risks. Implement measures to prevent and control identified risks with the collaboration of your employees, to the extent possible, and their union representatives, if any. Make sure that work methods comply with guidelines issued by the CNESST, the government and public health officials. Develop a plan to gradually reopen your workplace and share this plan with your employees. Encourage your employees to participate in identifying workplace risks and provide them with a forum or mechanism to make it easy for them to participate. Prevention Develop a procedure for checking employee and visitor health to avoid contagion in the workplace as much as possible. This may be done through a questionnaire, screening or self-reporting. Issue a directive that all workers and visitors must be vigilant and notify the employer if they experience COVID-19-like symptoms such as a fever or cough, difficulty breathing or sudden loss of smell or taste, or any other symptoms that government authorities may add, before reporting to the workplace.1 Set rules regarding hygiene, including hand washing, and respiratory etiquette at work2. Develop an environmental hygiene procedure involving daily disinfection of workplaces, objects and surfaces.3 Establish a procedure for isolating and managing employees or visitors who have symptoms in the workplace, as well as a procedure for disinfecting the premises. Encourage employees at higher risk of developing serious or severe complications from COVID-19 infection to follow appropriate prevention measures. Stay abreast of updates and guidelines issued by government, public health or occupational health and safety authorities, and follow them. Physical Distancing Issue clear guidelines regarding the physical distancing rules4 and how employees and visitors are responsible for respecting them. Inform employees and others such as customers, suppliers and business partners of these rules through the use of posters, memos, etc. Encourage telework for all employees wherever possible in order to reduce the number of employees on-site. Take steps to ensure that physical distancing is respected, and make certain that everyone can do so every day by rearranging workstations and work schedules, installing physical barriers, closing common areas, arranging or coordinating access to workplaces, installing contactless equipment, using technological means, holding virtual meetings, arranging for flexible hours, changing work methods, and so forth.  Revisit the organization of any in-person events or gatherings and consider holding these virtually or postponing them. Prohibit social practices that violate distancing rules, such as shaking hands. Develop protocols for the use of elevators or common areas. Policies Review your telework policies or procedures. Check your workplace civility or harassment prevention policies and update them to include virtual communications. Review your policies relative to attendance and leave for family or medical reasons in preparation for possible COVID-19-related absences. Create a policy or procedure for the return to work of employees who have been diagnosed with COVID-19, who think they may have COVID-19 or who have been exposed to someone who has contracted the disease5. Develop procedures to monitor for positive COVID-19 cases in order to notify persons who have been exposed and prevent further spread. Review your occupational health and safety policies in light of these COVID-19 contamination prevention measures. Communication Before employees return to work, inform them of the risks related to their work, including those related to COVID-19, and the preventive measures put in place to prevent and control these risks. Provide training on each employee’s role and responsibility in preventing the risk of COVID-19 transmission and contamination and guidelines to be followed. If you provide or recommend protective equipment, make sure that employees are trained to use such equipment in a safe and optimal manner. Inform employees of any revised or updated policies and explain the practical aspects of these policies to them, where necessary. Maintain training logs and have employees acknowledge that they have read updated policies with a signature. Train supervisors and managers to help them monitor compliance and enforcement of new occupational health and safety rules and procedures. Stay abreast of updates and guidelines issued by the CNESST and government and public health authorities. Inform your employees of any important updates. Be respectful of employee privacy. Do not tolerate any violation of your occupational health and safety guidelines, policies and procedures. Other Considerations Assess the psychosocial risks inherent to a pandemic context, such as balancing telework and family, providing support for loved ones, working in a different work climate, etc. Prepare what your response will be should some employees refuse to return to work for various reasons, whether or not they can do so legally. Be aware of tax legislation or legislation regarding unemployment insurance or emergency benefits—for example, the need to update an employee’s Record of Employment if work is available but they refuse to return to work for a reason deemed invalid. Be familiar with laws involving labour standards, discrimination, privacy, occupational health and safety and industrial accidents. Develop an emergency response plan now to deal with a possible second wave of the pandemic or a spike in infections following the reopening of workplaces or the lifting of the lockdown. Start to consider a future plan to resume pre-pandemic activities such as business travel, client visits, team meetings, events, etc. Encourage employees to raise questions or concerns and designate a contact person to dialogue with them. The professionals of our Labour and Employment team can assist you in implementing these measures, and others, as you resume your activities.   For more information on the exclusion or isolation of workers during a pandemic, consult the CNESST reference document. For more details on respiratory etiquette, consult the CNESST reference document. For more details on maintaining a hygienic environment during a pandemic, consult the CNESST reference document. For more details on physical distancing in the workplace, consult the CNESST reference document. See the INSPQ’s recommendations [French only] on the rules to follow when isolation is lifted.

The right to freedom of expression is not absolute. It does not permit employees to comment on political events unrelated to their workplace at all times and an employer can intervene if an employee expresses his opinions at work and on social networks. An employer has the right to request that his employees adopt a neutral position in these matters in the workplace and on the social networks. This principle remains effective even when the employee  is a union representative if the positions expressed do not concern a dispute related to working conditions within the organization or when such positions explicitly denigrate or criticize the employer. In July 2018, the Superior Court upheld an arbitration award1 in a case involving Renaud Bray2 and, in doing so, upheld the disciplinary suspension and dismissal of an employee and union representative who asserted that he had the right to wear the red square symbol at work. The employee also made defamatory statements about the employer on the internet. In the opinion of the Court, the importance of freedom of expression must be recognized, but so must the right of the employer to remain neutral in situations in which it is not involved. Context The employee wore a red square, a symbol of support for students in their dispute with the government over tuition fees at the time while he worked at a Renaud Bray bookstore. The employer also accused him of posting, while he was on paternity leave, comments on social networks that supported a boycott movement with regard to the employer, following a controversy that opposed the principal shareholder of the bookstore and an author.He was contesting two disciplinary measures (a three-day suspension and a dismissal), which had been imposed after he published comments that criticized and denigrated the employer on Facebook and on his blog. In particular, the employee encouraged citizens, customers, former employees, and artists to criticize Renaud Bray and file complaints because the company banned its employees from wearing red squares. The employer also filed two management grievances demanding compensation for the damage suffered as a result of these negative posts. Freedom of expression or neutrality?  The Court recognized that freedom of expression is an essential component of labour relations, and that it is often as a result of this freedom of expression that vulnerable workers are able to gain public support in their pursuit of better working conditions. The judge noted, however, that the red square movement did not relate to the working conditions at Renaud Bray, and the bookstore could validly maintain neutrality on this issue and require its employees to respect such neutrality. In this context, the right of freedom of expression is not absolute. Immunity that can apply to a union representative does not allow the employee to evade penalties: By posting such texts on his blog and his personal Facebook page, the employee was not acting as a union representative, but rather as an individual; He signed his articles and made requests to the readers in his own name; Moreover, some of the comments were made while he was on paternity leave and not working; His most recent posts were not about subjects that related to working conditions at Renaud Bray, but rather about a dispute between Renaud Bray and an author. Since some of the comments were false, the employee was also at fault with regard to his employer, and the employer was therefore entitled to compensation. According to the arbitrator and the Court, it was abundantly clear that the trust between employer and employee had been broken and that the dismissal was justified: how could the employer trust an employee who encouraged the readers of his Facebook page to demonstrate in front of the store and even boycott it? What employers should aim to do Given that an employer can legitimately maintain its neutrality in current debates and require that its employees respect such neutrality in the workplace, it is important to ensure that management is consistent and fair: for example, the employer could, in the workplace, prohibit the expression of political or other opinions in front of customers in general and refuse to tolerate messages on some matters. Given that the right to freedom of expression is not absolute, the employees’ duty of loyalty means that employees should not denigrate their employer, but instead should show restraint in their comments about the employer. In addition, the immunity from which union officials benefit is not unlimited; it does not protect an employee who clearly breaches said duty of loyalty. An interesting element in this case was that the employer became aware of the employee’s comments through an automated alert system used to find media articles and publications, regardless of the author. The arbitrator concluded that this was not illegal surveillance on the part of the employer, and this conclusion was not challenged before the Superior Court.   Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB-CTC-FTQ) et Librairie Renaud-Bray inc. (Julien Beauregard, griefs patronaux et syndicaux), 2017 QCTA 26. Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB-CTC-FTQ) c. Sylvestre, 2018 QCCS 2987 (discontinuance filed in September 2018 in regard to the application for leave to appeal).  

In a decision rendered on March 13, 20181, the Court of Appeal reiterated that caution is in order when making an application for confinement. The Court also took the opportunity to review the topic of confinement orders and the supervision and safety requirements that healthcare establishments have towards their users. The Court of Appeal’s reasoning is based on the following elements: where two doctors conclude on the need for confinement in an establishment, the user cannot be kept without his or her consent or the Court’s authorization for more than 48 hours; the hospital’s decision to make an application for confinement in an establishment does not constitute a simple blind or purely mechanical application of the conclusions presented in the psychiatric examinations conducted by the psychiatrists. It is the responsibility of the healthcare establishment in question to verify whether the legal obligations have been met prior to initiating the legal proceedings. Accordingly, the establishment must act with caution and transparency throughout this type of process, since the basic rights of the user subject to an application for confinement are at stake; the Civil Code of Québec, the Code of Civil Procedure and the Act Respecting the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others2impose very specific and strict provisions that must be complied with in connection with an application for confinement in an establishment; the establishment may likely be held liable if it neglects to verify and control compliance with the requisite conditions for confinement; failure to verify whether the two psychiatric examinations justifying the application for confinement comply with the legal requirements may also potentially engage the establishment’s civil liability; any incident or accident must be declared in good and due form in accordance with the Act respecting health services and social services3 to determine whether the establishment fulfilled its supervision and safety obligations as regards its confined users. It is therefore important to remember that healthcare establishments are obliged to demonstrate caution, transparency and verification when making an application for confinement and preparing such an application. G.D. v. Sir Mortimer B. Davis Jewish General Hospital, 2018 QCCA 379. CQLR, c. P-38.001. CQLR, c. S-4.2, Sec. 8 par.2 and 233.1.

On February 17, 2017, the Québec Court of Appeal1 upheld a decision of the Superior Court of Québec granting an application for authorization of care presented by the Centre intégré de santé et de services sociaux du Bas-Saint-Laurent. In this case, the patient attempted to assert the following grounds of appeal, each of which were unanimously dismissed by the Court of Appeal. First, the patient argued that the judge in first instance could not conclude that there had been a categorical refusal by the patient without first ensuring that he had received all the necessary information to make a free and informed decision. Moreover, the duration of the order obtained had to be as short as possible. Finally, based on the decision in M.M.Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M.2 the immediate enforcement of the order ought not to have been ordered. In this case, it was admitted that only the treatment that was initially planned had been considered and discussed with the patient, and he had not been provided with any additional explanation with respect to the proposed second and third alternative treatments. However, during the hearing before the Superior Court, the treating psychiatrist provided the Court with explanations regarding the alternative treatments. On this point, the Court of Appeal found that the explanations provided during the hearing met the requirements and that the patient had had the opportunity to request an adjournment of the hearing to obtain additional information, which he had not done. Therefore, while the information discussed with the patient regarding the alternative treatments being considered was incomplete, the Court of Appeal held that the judge in first instance could infer that there had been a categorical refusal by the patient, because it was clear that any discussion with him about medication was doomed to fail. In addition, the Court of Appeal took the opportunity to distinguish an authorization of care which is purely preventative in nature from the presentation of a full plan of care which includes alternative therapies based on the evolution of the patient’s specific situation. The Court noted that there is a real difficulty in determining which medication is more suitable for treating a patient. The difficulty is, in fact, compounded where the patient refuses to grant access to his medical files, therefore resulting in a lack of information on the medicinal trials attempted in the past. Regarding the duration of the care order, the Court noted that the D.A.case3 did not stand for the proposition that the duration of such an order must be as short as possible, but rather, [translation] “[…] the shortest possible duration that is reasonably feasible 4 and, in the case of F.D.5, the Court instead defined the duration as [translation] “a sufficient period to ensure that the treatment produces the beneficial effects that are expected.”6 For these reasons, the Court did not modify the duration of the order set by the Superior Court at three years, particularly in light of the complex and resistant nature of the illness, as well as the patient’s lack of diligence in taking his medication. In closing, the Court of Appeal noted that, in matters involving care orders, immediate enforcement must be explicitly requested, and respect for the dignity of the patient requires that there be proof in each case of a grave and imminent risk to the patient’s health for such an order can be issued. However, in fact, the Court found that this burden had been met because any delay in administering the medication was likely to increase the patient’s resistance to the proposed treatment plan.   C.R. c. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent, 2017 QCCA 328. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M., 2016 QCCS 5572. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734. Ibid., para. 31. F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. Ibid., para. 54.