What Types of Businesses Can Reopen?
In the Northwest Territories, the Chief Public Health Officer has ordered that certain types of businesses shall close: recreational facilities (including but not limited to arenas, pools, and gymnasiums), community centres and youth centres, bottle depots, gyms and fitness centres, museums and art galleries, and businesses where personal services are offered and social distancing cannot be maintained. Such services include hair and nail salons, spas and aestheticians but also some health care services such as massage, chiropractic and acupuncture services.
Grocery stores, gas stations, banks, pharmacies and liquor stores are deemed essential retail services in the Northwest Territories and may remain open provided they are following the Orders and Directions from the Chief Public Health Officer mandating social distancing and preventative guidelines.
Offices, non-essential retail stores, and restaurants offering takeout and delivery may remain open provided they are able to comply with the guidelines issued by the Chief Public Health Officer of the Northwest Territories (guidelines discussed in more detail below). These guidelines apply to employees attending offices, workplaces, and non-retail businesses. Mining, oil and gas operations in the Northwest Territories are subject to a separate public health order.
Likewise, in Nunavut, a public health order mandates that all Nunavummiut maintain social distancing of two meters. Businesses which cannot maintain a two meter distance between individuals, must limit the number of customers or clients to no more than five customers at a time. Similar to the Northwest Territories, restaurants and bars must remain closed. However, food services may remain open for take-out provided that all persons in the premises can maintain a two meter distance apart and no more than 10 people are in queue to pick-up food orders.
If and when these restrictions are lifted or modified, more businesses will be able to cautiously reopen or have employees come back to the workplace. As a result, it will be critical for employers to make sure that safety precautions are in place.
Making Sure Your Workplace is Safe
Employers must take all necessary precautions to minimize the risks of COVID-19 transmission. The Workers Safety and Compensation Commission (“WSCC”) is the agency that is responsible for administering occupational health and safety legislation in both the Northwest Territories and Nunavut.
The WSCC has developed a risk assessment and worksite precaution planning tool to assist employers in determining the level of risk of exposure of employees to COVID-19. The assessment is mandatory and once completed it becomes part of your organization’s health and safety plan, although it does not need to be submitted to the WSCC. The assessment considers some of the following factors that an employer should consider in determine whether it is safe for an employee to return to work:
- Has the worker returned to the NWT within the last 14 days, or if returning to Nunavut, did they complete a 14 day isolation in one of the southern hubs as required?
- Does the worker have a cough, shortness of breath, or a temperature?
- Does the shift schedule or work environment ensure social distancing? Could you divide the staff between shifts?
- Can you relocate employees to ensure that they are working a safe distance away from each other?
- Can you set traffic patterns/markings throughout the office to minimize contact between employees?
- Is there an adequate supply of personal protection equipment for employees (hand sanitizing stations, access to face masks, etc.)?
WSCC can inspect your workplace to make sure that it is safe for employees to return. You should review protection measure regularly with staff to make sure everyone knows and understands what the employer will do to ensure safety so employees know what steps they must take to protect themselves from exposure.
For workplaces normally open to the public in the Northwest Territories, the guidelines appended to the order of Chief Public Health Officer dated April 11, 2020 indicate that businesses should post signs at the entrance advising customers not to enter if they are experiencing symptoms of COVID-19. Hand sanitizer should be available as customers enter the business and high traffic areas and surfaces should be frequently disinfected. The guidelines request that businesses restrict cash transactions and limit the number of customers in the establishment to 10 people at a time, or a number where customers can safely maintain a two meter distance apart. Barriers, adjustments to workflow and staggering employee shifts are recommended so employees can maintain distance from each other and customers. Employees who are unwell should remain home and personal hygiene should be strictly enforced.
For businesses which are not generally open to the public in the Northwest Territories, employees should ensure that workspaces are two meters apart and that high contact surfaces such as keyboards, door handles and photocopiers are disinfected frequently. Employers should stagger employee shifts to reduce employee contact, encourage video conferencing rather than meeting in person and implement work-from-home strategies where possible. Physical distancing should be enforced and employees who are unwell should be sent home.
While the Government of Nunavut has not yet issued similar guidelines, the above noted preventative measures, such as available hand sanitizer and protective barriers between employees and customers, are prudent measures for businesses in Nunavut as well.
Can an Employee Refuse to Come Back to Work?
COVID-19 is unprecedented and is understandably creating uncertainty in the workplace. As restrictions are relaxed, many employees will be asked to return to the workplace. Employers must be prepared to respond to employees who do not want to return because they do not feel the workplace is safe.
It is possible that the COVID-19 pandemic may create a basis for a legitimate work refusal in very limited circumstances. If an employer, however, has put adequate safety measures in place and is following the guidance of the WSCC and the Chief Public Health Officer, an employer may be justified in terminating someone who refuses to come into the workplace. An analysis of whether or not the refusal is reasonable should consider the following factors:
- The age and health of the specific worker;
- The number of workers at the workplace and whether or not social distancing is possible;
- The state of the COVID-19 situation in your community; and
- The measures adopted by the employer to prevent transmission, including workplace scheduling, hygiene, and PPE.
Whether or not a work refusal based on safety concerns is reasonable will depend on individual circumstances. In the Northwest Territories and Nunavut the Safety Act states that a worker can refuse work where the worker has reason to believe that; (a) there exists an unusual danger to the health or safety of the worker, or (b) the carrying out of the work is likely to cause to exist an unusual danger to the health or safety of the worker or any other person. “Unusual danger” means a danger that does not normally exist in that work. WSCC does have the authority to investigate claims of unsafe work and to issue stop work orders if it considers the workplace to be an unsafe environment.
It is also important to consider the reasons why any employee may be refusing to come to work. If they have childcare obligations because of the closure of schools, the employer must consider its human rights obligations with respect to accommodation on the basis of family status.
The public health orders in both Nunavut and the Northwest Territories are rapidly changing in response to new information about the effects and spread of COVID-19. Before employers take any action, consultation with government officials to ensure they are acting on the most recent information and consulting with legal counsel is recommended.
Sandra is a litigation lawyer, practising in the areas of labour and employment, civil litigation, administrative and child protection law. Sandra acts as an advocate for clients in both the Northwest Territories and Nunavut for ...
Stefanie is an associate in Lawson Lundell’s Yellowknife office. She practices in general civil litigation and child protection law. She has experience representing clients in both public and private disputes as well as ...
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