North America: Getting Back to Business in the COVID-19 Era

May 22, 2020

Businesses in North America should prepare back-to-work plans while also listening to guidance from health and government authorities as the COVID-19 coronavirus pandemic continues.

Here's what you should know about reopening in certain areas.

Canada

Content provided by Borden Ladner Gervais LLP
 
Contact:
Matthew P. Williams
Partner
 
Current national guidance or requirements regarding returning to work
 
On April 28, a guiding framework on reopening economies — jointly agreed to by the federal, provincial and territorial governments — was released.
 
The preconditions include:
  • COVID-19 transmission is controlled
  • sufficient public health capacity is in place to test, trace, and isolate all cases
  • expanded health care capacity exists for all patients, COVID-19 and non-COVID-19
  • supports are in place for vulnerable groups/communities and key populations
  • workplace preventative measures
  • avoiding risk of importation
  • engage and support
 
 
Each province has also announced its own (typically 3-stage) action plan for reopening after the COVID-19 pandemic. For example, Phase 1 of each plan typically includes:
  • a consistent (e.g. 2 – 4 week) decrease in number of new daily COVID-19 cases
  • sufficient acute and critical care capacity (e.g. ventilators, ongoing PPE availability)
  • approximately 90% of new COVID-19 contacts are being reached by local public health officials within one day
  • ongoing testing and detection of new outbreaks
  • continued avoidance of non-essential travel outside the country
  • self-isolation for 14 days upon travel outside the country
  • continued compliance with health recommendations:
    • practicing good hygiene
    • frequent disinfection of services
    • staying at home when sick
    • maintaining physical distancing
    • recommended use of non-medical face masks when physical distancing is not possible
    • avoiding physical contact
 
 

Certain provinces have also issued sector-specific guidelines and posters to help protect workers, customers and the general public from COVID-19 on reopening.

Link: Government of Ontario sector-specific resources to prevent COVID-19 in the workplace

Logistical limits regarding social distancing and size of meetings

Plans are contingent on businesses following public health measures, such as best practices relating to promoting physical distancing and frequent handwashing, sanitizing surfaces, installing physical barriers, staggering shifts, and using contactless payment options to stop the spread of COVID-19. Many plans also will still limit physical gatherings to a small group of people.

  • These present challenges and increased cost, time and training of employees
  • Businesses only have so much internal space and there must be space for people to physically distance, both inside and outside, if waiting to enter
  • For example:
    • for firms with fitting rooms or boardrooms, consider closing off adjoining rooms, such that only every other room is available for use
    • consider having designated “lanes” for travel within the premises
    • consider removing seating in reception areas, or marking/blocking off adjacent seats
    • for large highrises with elevators, these may be limited to 2 people per elevator at a time
  • Certain governments have mandated certain of these requirements
 
Certain provinces have also issued sector-specific guidelines and posters to help protect workers, customers and the general public from COVID-19 on reopening.
 
For example, the Ontario government recommends the following guidance for firms in the food service, food manufacturing and retail industries:
  • minimize contact with customers
  • maintain a safe distance while handling goods and taking payment, minimize or eliminate handling of cash and eliminate at-the-door payment methods
  • assign staff to ensure customers are maintaining safe physical distances in congested areas like entrances/exits and check-outs
  • add floor markings and barriers to manage traffic flow and physical distancing
  • do not accept re-usable bags or containers that are to be handled by your staff
  • install barriers between cashiers and customers; this can include plexiglass or markings on the floor to ensure at least 2 meters between customer and cashier
  • stagger start times, shifts, breaks, and lunch times
  • restrict the number of people on-site and where they are assigned to work
  • control site movement (by limiting the potential for workers to gather)
  • limit the number of people working in one space at the same time
  • minimize the number of people using each piece of equipment in instances where sharing equipment cannot be avoided
  • hold meetings in an outside or large space
  • limit unnecessary on-site interaction between workers, and with outside service providers
 
Testing requirements or recommendations including employee monitoring
 
Compliance with employee health and safety and public health requirements
Until effective vaccines and/or therapies for COVID-19 become available, employers will need to continue taking all reasonable steps to ensure that their workplaces are compliant with public health guidelines and requirements as well as their obligations to protect the health and safety of employees. This will affect physical workspaces and require that employees are properly informed, equipped and monitored to ensure compliance.
 
Work plans and policy should take into account several factors, including:
  • zero-tolerance policy and non-compliance
  • reporting policy violations
  • business needs, including client or third party-facing activities
  • scheduling to respect physical distancing requirements (modifying shifts, start times, teams, alternating office presence, etc.)
  • common areas
  • type of work location (e.g. standalone or shared building)
  • shared building owner’s policies and measures
  • region (e.g. affected or less affected area)
  • safety supply (e.g. PPE) availability
  • cleaning availability
Testing and other screening methods
Such testing and how it may be carried out (if at all) raise a variety of privacy and human rights issues, requiring careful examination and a balancing of the rights and obligations of both employer and employees. Employers who proceed with such testing will inevitably face refusals or questions on the part of employees or their unions.
 
Protocols for dealing with confirmed COVID-19 cases or employees displaying symptoms or returning post-infection or from abroad
Having proper protocols in place will be critical to minimize the risk of transmission and future outbreaks, in order to avoid future shutdowns and a loss of production. Both public health guidance and industry best practices, as well as legal compliance measures should inform such protocols.
 
Recalling employees in a non-unionized setting
Employers will be well advised to establish procedures for selecting employees to be recalled that do not conflict with applicable legislation and which minimize the employer’s exposure to possible human rights or other employee claims.
 
Dealing with employee refusals to return or to remain at work
Employees have certain limited statutory rights to unpaid leaves, but these are not indefinite or unlimited and will not apply to many situations where employees refuse to return to the workplace. It can be expected that many employees will feel uneasy leaving their home or remote working environment to be around others who may be vectors of the COVID-19 virus. Employers who have taken all appropriate measures in compliance with public health requirements and followed best practices will be less tolerant, if at all, towards such individuals who still refuse to return to work simply out of fear.
 
Workplace hygiene practices
Employees will inevitably not all adhere to the required workplace hygiene practices (e.g. physical distancing, regular hand-washing, coughing into your elbow, etc.) with the necessary rigour, and those who do may not want to share a workplace with them.
 
Mental health issues
Given the high level of stress that returning (and refusing) employees will have experienced over the course of the shutdown, and will continue to experience, employers can expect an increase of mental health issues affecting its workforce.
 
Remote working
As employers manage the migration back toward the traditional workplace, remote working may remain something employers favour for certain types of employees, at least for a certain period of time, or it may be demanded by employees who have become accustomed to this new way of working.
 
Reviewing and updating human resources policies
Most notably, policies regarding workplace health and safety, adherence to public health guidelines and requirements, including physical distancing, proper hand-washing hygiene, proper work methods and material handling, temporary layoff policies, leave of absence policies and expense reimbursement policies (considering the potential for ongoing remote working arrangements).
 
Updating employment agreement templates
Employment contracts should be reviewed in light of these experiences and provide flexibility for the employer to implement changes to working conditions, as needed, to navigate through similar situations.
 
Union issues
All provisions that may have a direct financial impact should be carefully scrutinized in order to determine whether they may be temporarily amended, suspended, delayed or even removed from the collective agreement, whether with or without the union’s agreement or consent.
 
Vulnerability to unionization
Employers operating in a non-unionized context must be aware of the fact that their actions and the decisions they make in a time of crisis may make them highly vulnerable to unionization efforts, especially if proper attention is not given to the employees’ needs and concerns.
 
Privacy
Bringing employees back to work will also raise a myriad of issues that employers will need to consider in light of the employees’ privacy rights. Particular attention will need to be given to any and all measures pertaining to the verification of the employees’ medical condition, including, without limitation, body temperature checks and questions related to the employees’ whereabouts and current medical condition.
 
 
Cleaning recommendations or requirements
Plans are contingent on businesses following public health measures, such as best practices relating to promoting physical distancing and frequent handwashing, sanitizing surfaces, installing physical barriers, staggering shifts, and using contactless payment options to stop the spread of COVID-19.
 
  • frequency and depth of cleaning and sanitizing will depend on industry and business
  • there are no formal requirements from government on the frequency of cleaning per se, but certain provinces have issued sector-specific guidelines and posters to help protect workers, customers and the general public from COVID-19 on reopening
  • certain governments have mandated these requirements (such as, for example, the use of changing rooms with doors only, instead of curtains, to facilitate disinfecting)
 
 
 
Compensation or remuneration issues
 
Eligibility of wage subsidy and/or employer assistance programs available in Canada
 
 
 
 
Data collection and privacy 
Before collecting or disclosing any information about an identifiable individual, organizations must accurately assess their obligations under the laws that govern the protection of personal information in Canada in order to determine the extent to which they may collect and share such information, and under what conditions.
  • Can businesses lawfully request their employees disclose whether they have tested positive for the COVID-19 virus or been exposed to certain risk factors?
  • Can employers request that employees undergo certain types of testing or compulsory checks?
  • In the context of a public health emergency such as COVID-19, when can organizations share personal information – including health-related information – with other employees, clients or regulatory authorities, without the consent of the affected individual(s)?
  • What must organizations (especially employers) do to comply with Canadian privacy laws and address the cybersecurity risks triggered by remote working arrangements and COVID-19?
 
 
What is the impact of COVID-19 on privacy/access rules in healthcare?
  • different standards apply in exceptional circumstances
  • practical tips to protect privacy when staff are working from home (mobile devices, communication, paper files, cyber risk and breach notification during COVID-19)
  • disclosure of COVID-19 status by healthcare providers
  • flow of personal health information between care providers
 
Other important issues
 
Before employers can begin reopening and admitting employees back to work, they will have to be aware of the state of each province’s response to COVID-19 as it relates to childcare centres, elementary and secondary schools, and post-secondary institutions. If schools are not open, employees may have to look after children and may be unable to return to work.
 
A summary of school closures, timelines for reopening, changes to each province’s assessment processes, and financial aid programs available to schools and parents is at the link below.
 
 
COVID-19 workplace issues
  • temporary lay offs
  • constructive dismissal claims
  • work refusals for unsafe work
  • changes to employment insurance
  • new statutory leave for quarantine
 
Public health measures may mean that many employees will remain working remotely, if possible. This creates cybersecurity risks, including:
  • phishing/fraud
  • technical vulnerabilities
  • video conferencing risks
  • ransomware/malware
  • password misuse/fraud
  • physical risks: increased risks of stolen or lost devices
  • mistakes: increased risks of mistakes by workers while using new technologies and procedures
    • Government agencies, regulators and self-regulatory organizations have issued guidance to help organizations manage COVID-19 cyber risks.
  • the guidance emphasizes the three fundamental pillars of an effective cybersecurity program – people, processes and technologies
  • a summary of the important recommendations under each heading is contained at the link below
 
Organizations should consider whether they have adequate insurance for cyber risks, including risks associated with remote working arrangements and the information technology systems and devices used by remote workers.
 
 
 

   

Mexico

Content provided by Galicia Abogados, S.C.
 
Contact:
Juan Pablo Cervantes
Counsel
 
Current national guidance or requirements regarding returning to work
 
On May 14, modified on May 15, the Health Ministry determined the stages in which the reopening of economic activities may be carried out, as follows:
 
First stage: begins on May 18th in municipalities in which no cases of  Covid-19 have been presented and that are contiguous to municipalities in which no cases have been presented. These municipalities may resume essential and non-essential activities, as well as mobilizations in public spaces and educational activities;
 
Second stage: this stage will take place from May 18th to May 31st and will have as purpose to prepare all the actions necessary to reopen activities, which include the preparation of health protocols and training of personnel, as well as the implementation of sanitation filters, and hygiene protocols;
 
Third stage: which begins on June 1st, will use a color-based “traffic lights” system divided by regions and considering three types of activities: (i) schools, (ii) public space, and (iii) economic activities.
 
For those regions in green, activities in schools, public spaces and economic activities are allowed without restrictions.
 
For the regions in yellow, school activities are suspended. Activities in open public spaces are allowed in accordance with their capacity. Activities in closed spaces are allowed with restrictions and general economic activities will have no restrictions at all.
 
For orange regions, school activities are suspended. Activities in open public spaces are allowed with a reduced capacity. Activities in closed spaces are suspended and essential economic activities will operate in a limited way.
 
For regions in red, activities in schools and public spaces are suspended, and only essential activities may continue to operate.
 
The regions will be reviewed every week, in order to analyze the epidemiological risk related to the resume of activities in each state.
 
Please be aware that on May 17 the Ministry of Health issued the sanitary guidelines that companies must comply with in order to be allowed to resume activities in terms of the three stages plan mentioned above. It is important to mention that these sanitary guidelines apply also to the three new essential activities -mining, transportation equipment (auto and air), and construction- which may begin operations as of May 18th, as long as the applicable protocols are presented and authorized.
 
Logistical limits regarding social distancing and size of meetings
 
As part of the promotion of health-related strategies, the following measures must be adopted, among others:
  • Provide general information regarding COVID-19, including contagion mechanisms, symptoms and best ways to prevent infection
  • Wash hands with soap and water frequently or instead use of sanitary gel (70% alcohol)
  • Cover nose and mouth when sneezing or coughing with a tissue paper or the inside of the elbow
  • No touching face with unclean hands, particularly nose, mouth and eyes
  • Clean and disinfect surfaces and commonly used objects in offices, closed places, transport and meeting places, among others
  • Maintain a distance of 1.5 meters between persons
  • Meetings cannot be larger than 50 persons
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
Sanitary protocols include taking people´s temperatures, social distance, use of protective personal equipment, use of sanitary gel (70% alcohol) among others.
 
Cleaning recommendations or requirements
 
As discussed above, one of the measures to be adopted consist of cleaning and disinfecting surfaces and commonly used objects in offices, closed places, transport and meeting places, among others.
 
Additionally, please be aware that sanitary protocols compel the mining, automotive / air and construction industries to comply with the sanitary protocols of their countries of origins, as well as the Mexican protocol. 
 
Compensation or remuneration issues
 
There have not been any government incentives for employers to keep employees on the payroll during the health emergency, or alleviate the financial crisis resulting from the Covid-19 outbreak.
 
Once the suspension of non-essential activities is ended, employers may return to work under strict sanitary measures to protect employees’ health and prevent contagion. Employees must be compensated on the same terms and conditions to which they were entitled prior to the suspension of work, unless working reduced shifts or under special arrangements reached with the employer.  
 
Data collection and privacy
In Mexico, the Federal Law on the Protection of Personal Data held by Private Parties establishes the obligation for individuals and corporations who process personal data, to act with the informed, specific and often times express consent of data owners. Moreover, they must timely and adequately notify these of the terms and conditions that will govern any such processing, including transfers to third parties. This becomes especially relevant when it comes to the handling of health data. While tacit consent is traditionally sufficient for processing basic personal data, consent must be express and in writing when it comes to the processing of sensitive personal data.
 
Therefore, in returning to work, employers whose health policies and procedures may involve or require the processing of sensitive personal data must ensure that an adequate privacy notice (in Spanish) is made available to its employees (as data owners). It can be provided through any physical, electronic, optic, audio, video or any other technology. Owners must also consent to the transfer of its data to any third party, including health and medical service providers.
 
Employers, in addition to informing and collecting consent, must provide recipients with its privacy notice for them to act in accordance with such. No consent is required for transfers to any holding company, subsidiary or affiliate under common control of the data controller. 
 
Other important issues
 
Additional health-related measures that have been adopted consist of encouraging use of home office, when possible, establish alternate working hours or days, control number of visitors or service providers, avoid large number of people in cafeterias, meeting rooms or common spaces and place distinctive signs in public spaces, increase transportation alternatives for workers and enact measures for vulnerable individuals (those with preexisting health conditions, persons over 60 years of age, pregnant women) among others.

    

United States

Content provided by Dechert LLP

Contact:
Nicolle Jacoby
Partner
+1 212 698 3820 
nicolle.jacoby@dechert.com
 
How do employers determine if they are ready to reopen?
 
When determining whether to reopen, employers must first consider federal, state, and local government business restrictions.  On April 16, 2020, the White House issued the Opening Up America Again guidelines to provide states with a three-phase approach for reopening their economies.   Pursuant to these guidelines, state and local governments may relax their individual shutdown orders in phases based upon achieving the following criteria:

  • 14-day period in which the state or region has seen a downward trajectory of  reported “influenza-like illnesses” (ILI) and “covid-like syndromic cases”;
  • Downward trajectory of documented COVID-19 cases or positive tests as a percent of total tests within a 14-day period;
  • Hospitals are able to treat patients without crisis care; and
  • There is a robust testing program in place for at-risk healthcare workers, including antibody testing. 
The White House’s guidelines are not binding, however, and state and local governments may revise their applicable restrictions based on either more lenient or stringent criteria.  As a result, many state and local governments have announced return-to-work plans with specific details and timing for reopening.  Employers will need to consider and comply with these requirements when formulating their own re-opening plans. 
 
The Centers for Disease Control and Prevention (CDC) has released a “workplaces decision tool” to assist employers in navigating this process.   In addition to several other factors discussed below, the CDC suggests that employers should not reopen unless they have the ability to protect employees at higher risk of severe illness (including those 65 and older and employees with underlying medical conditions).
 
Because this is a rapidly evolving area, employers must continuously monitor the requirements of the jurisdictions in which they operate, as well as the guidance issued by the CDC and other public health authorities, such as the Occupational Safety and Health Administration (OSHA) and the World Health Organization (WHO). 
 
Employers must also assess their individual readiness to resume operations based on their ability to put in place procedures and processes to protect employee safety and comply with applicable government orders and guidelines concerning, among other things, social distancing, employee screening, and the response to positive cases of COVID-19 among employees.  
 
What steps should employers take before reopening?
 
In addition to the considerations discussed above, the CDC has advised that employers should assess whether “recommended health and safety actions” and procedures for “ongoing monitoring” are in place.  As part of making these determinations, employers should conduct an assessment of their facility and working conditions to determine the level of risk of COVID-19 exposure that employees and others might face. They should then identify the steps that are necessary to protect employees and the employer’s business.  This risk assessment should be conducted in accordance with the recently released OSHA guidance, which classifies workplaces as presenting very high risk, high risk, medium risk or low risk of exposure.   The OSHA guidance provides the minimum standards employers should implement to mitigate potential liability upon reopening the workplace, and must be considered in conjunction with all relevant state and local government orders, as these may impose additional requirements depending on the workplace conditions. Employers may be required to provide employees with Personal Protective Equipment (PPE), including gloves and face coverings (masks).
 
Employers should then develop an operational plan for implementing and maintaining new policies and procedures to ensure a safe and healthy workplace.  Many employers are choosing to designate a task force or working group to manage this process and oversee the employer’s response to confirmed or suspected cases of COVID-19 within the workplace.  This plan should focus on issues such as:
  • Providing employees with adequate PPE based on the risk of exposure;
  • Updating the facility with safety measures to promote social distancing and employee protective measures, such as physical barriers and partitions, automatic doors and trash bins, high-efficiency air filters, and equipment to increase ventilation rates;
  • Adopting social distancing procedures, including limiting the number of people in common areas and elevators, closing or restricting access to cafeterias and break rooms, and limiting or eliminating group meetings and activities;
  • Increasing cleaning and disinfecting protocols in compliance with CDC guidance; 
  • Adopting protocols for responding to confirmed or suspected cases of COVID-19 among employees, including procedures for isolating employees and conducting contact tracing to identify other potentially exposed employees;
  • Managing the disinfection of the premises after persons with a suspected or confirmed case of COVID-19 has been in the facility;
  • Training employees on the signs and symptoms of COVID-19, heightened hygiene practices to prevent the spread, and social distancing measures within the workplace; and
  • Training Human Resources or safety personnel concerning these practices and protocols.
Aside from operational logistics, employers will also need to consider staffing requirements and structuring work arrangements.  As the state and local governments relax shutdown orders, some may require employers to limit the proportion of the workforce that can immediately return to in-person operations and others may continue to require employees to work remotely.  Therefore, employers should consider, among other things:
  • Which employees will return to the workplace in the first instance, prioritizing those who are critical to the proper functioning of the workplace and asking other employees to volunteer;
  • Employee availability based on their individual circumstances (e.g. local curfews, family or child care, underlying medical conditions that may require additional accommodations);
  • Staggered and/or rotational work schedules to allow employees to commute at non-peak times and to limit contact in the workplace;
  • Whether, and the extent to which, teleworking should continue; and
  • What to do in relation to employees who are vulnerable to COVID-19 due to underlying health conditions, or who refuse to come back to the workplace.
How should an employer handle the initial reopening?
 
Prior to reopening the workplace, employers should provide notice to their employees. This notice should include information on new policies and procedures the employer has put in place to prevent the spread of COVID-19 as well as the contact information for the designated person(s) responsible for answering any questions or concerns.  In addition to the notice of reopening, employers may wish to consider including a health assessment/questionnaire for employees to provide information. The employer may ask the employee whether they have experienced symptoms of, or were diagnosed with, COVID-19 or have had close contact with anyone who has a suspected or confirmed case of COVID-19. However, employers may not ask employees if they have any underlying conditions that places them at an increased risk of contracting COVID-19.  All medical information must be kept confidential and in compliance with the Americans with Disabilities Act (ADA).
 
As employees arrive at the worksite, employers will likely need to provide extra direction and guidance for navigating the new policies and procedures.  This may include providing staff to monitor and remind employees of social distancing requirements and to provide employee-PPE. 
 
Additionally, employers may wish to consider implementing employee screening measures, such as temperature testing, COVID-19 testing, and/or antibody testing.  It is important to note that not all infected individuals will exhibit a fever, so additional precautions may be necessary.  The U.S. Equal Employment Opportunity Commission (EEOC) has stated that employers may conduct temperature screening of employees as a condition of returning to work and/or entering into the workplace, and may also require employees to provide medical clearance before returning to work. Additionally, although COVID-19 tests may not be widely available to employers in many areas, the EEOC has confirmed that such testing will not implicate the ADA if the tests are administered in a consistent and non-discriminatory manner.   Employers must be sure all testing is done in compliance with state and local requirements as well as guidance from the public health authorities.  Furthermore, all results must be recorded and maintained in a log separate from the employee’s personnel file.  Absent an exceptional reason, employers may prohibit an employee from entering the worksite if the employee refuses to submit to a permitted screening measure. 
 
What are the key considerations in continuing operations?
 
As in-person operations continue, and employees adjust to the new policies and procedures, employers should remain in close communication with their employees and be sure to provide them with the most up-to-date guidance and health and safety precautions.  Employees who fail to adhere to social distancing requirements can and should be disciplined in accordance with the employer’s updated policies.  Employers must also be prepared to respond quickly to governmental orders imposing new limitations on business operations due to an increase in the number of COVID-19 cases in an area.
 
Aside from maintaining new protocols in the workplace, employers must implement a process for promptly addressing employees who contract COVID-19 or exhibit signs or symptoms of the virus while in the workplace.  Once an employee with a possible or confirmed infection has been identified, employers should be prepared to: 
  • Isolate that employee in a designated area and require that the employee go home and/or seek medical care;
  • Notify the appropriate Human Resources/safety personnel or COVID-19 task force member of the situation;
  • Obtain a list of individuals with whom the affected employee had close contact (typically defined as contact within 6 feet for 10 minutes or more) within the two days before the employee began experiencing symptoms, and direct those individuals to self-quarantine and/or self-monitor and take other protective measures; and
  • Deep clean and disinfect all areas in which the affected employee was present (this may require temporarily closing the workplace for 24 hours
According to the CDC, employers should monitor employee absences due to COVID-19 and be prepared to consult with health authorities if there are cases in their workplace or an increase in cases in their local areas.
 
Furthermore, employers will need to develop and implement policies and procedures that employees with a suspected or confirmed case of COVID-19 must follow prior to returning to the workplace.  The CDC has released guidance for “ending home-isolation,” which sets forth criteria to determine whether an employee may return to the workplace, depending on their particular situation and the availability of COVID-19 testing. Employers should consult this CDC guidance and their state and local orders to effectively bring an employee back to the workplace.
 
Finally, to the extent applicable to them, employers must adhere to the general requirements of the Family and Medical Leave Act, the ADA, and any other state and local regulations.  Employers with fewer than 500 employees must continue to adhere to the COVID-19-related leave requirements set forth by the Families First Coronavirus Response Act (FFCRA  Notably, the FFCRA is in effect until December 2020 and requires that employers provide supplemental paid and unpaid leave for a variety of COVID-19-related issues.   In light of ongoing developments, the CDC recommends that employers remain flexible in relation to their leave policies and practices. 
 
Because this a rapidly evolving situation, employers must be flexible and prepared to adapt their return-to-work plans, policies, and procedures.  Employers must monitor federal, state, and local developments as well guidance from public health authorities.