June is proving to be a busy month for human resources professionals working in Toronto. First, the changes to the Occupational Health and Safety Act (“OHSA”) will come into force on June 15, 2010. The changes bring the issue of workplace violence and harassment to the forefront. This important issue is also being considered as employers prepare for the upcoming G-20 Summit (the “G-20”) being held in Toronto on June 26 and 27, 2010. This article aims to answer some of the most frequently asked questions as downtown employers make plans for doing business during the G-20.
1. What obligations does an employer have to protect employees, customers and members of the public from workplace violence and harassment during the G-20?
Downtown employers will need to assess the risks and monitor conditions during the weeks leading up to the G-20 as the conditions are likely to affect employee and customer safety, access, and attendance at the workplace. Pursuant to the OHSA, employers shall assess the risks of workplace violence and harassment that may arise from the nature of the workplace, the type of work, or the conditions of work. Factors to be considered in the context of the G-20 include: is the workplace located in the restricted security zone; is the workplace located in a building that is owned by a major financial institution; do employees need to pass by protestors to enter the workplace; etc. It should also be noted that every G-20 held in the past has attracted protestors and most have experienced some violence. Downtown employers will have to consider these risks and take all reasonable steps to protect the safety of its employees, customers and others attending the workplace.
What is reasonable in the circumstances may be significantly more burdensome than would be required on a regular work day. Such measures may include allowing employees to work offsite or requiring employees to use vacation time. Additional measures may include closing the company’s business to the public. The bottom line in determining what steps to take is that employers have an obligation not to place employees, customers and members of the public at risk. This is particularly challenging if protestors are out in force and violent.
After assessing the risks of workplace violence and harassment, employers should develop a comprehensive plan and inform employees of such plan. It would be prudent for the plan and information bulletin to include the following:
• Identify a dedicated person to communicate with employees, property management, security, and/or other emergency responders;
• Establish a communication strategy to communicate late breaking news to employees. In this regard, consider compiling a list of home emails and current phone numbers for employees. A further option to consider is a telephone tree in order to communicate with workers quickly and efficiently in the event of unexpected issues;
• Employees should be reminded to report any issues to their manager or other designated person;
• Instruct employees on first-aid to be applied if they come into contact with tear gas or pepper spray;
• Ensure there is sufficient first-aid equipment on site; and,
• Implement a casual dress-code (ie. jeans, shorts, t-shirts, sneakers) so that employees are not visible as targets coming to work.
2. What additional obligations does an employer have if it decides to remain open on Friday, June 25, 2010 and/or through the week leading to the G-20?
In addition to the obligations to protect employees from the risk of violence and harassment in the workplace, employers should have contingency plans in place in the event that property managers lock down buildings so that access is restricted to pass holders only. In this regard, employers should take the following proactive steps:
• Ensure that all employees have current access cards;
• Discourage visits from customers and/or the public during the week of June 21, 2010; and,
• Make arrangements for advance delivery of office and operational supplies necessary for the week of June 21, 2010.
Furthermore, in the event that employees are not able to attend at work due to protests and other disturbances, employers must be cognizant of having the remaining employees cover the workload. Of particular note are the following requirements of the Employment Standards Act (the “ESA”):
• The maximum number of hours most employees can be required to work in a day is eight (8) hours or the number of hours in an established regular workday, if it is longer than eight (8) hours. The daily maximum can be exceeded by written agreement;
• The maximum number of hours most employees can be required to work in a week is forty-eight (48). The weekly maximum can only be exceeded by written agreement provided that the employer has received prior approval from the Ministry of Labour;
• In most cases, employees must receive at least eleven (11) consecutive hours off work each day; and
• Employees must receive at least eight (8) hours off work between shifts. An employer an employee can agree in writing that the employee will receive less than eight (8) hours off work between shifts.
The ESA provides an exemption to the above-noted standards regarding hours of work in “exceptional circumstances” but, only so far as is necessary to avoid serious interference with the ordinary working of the employer’s operations. “Exceptional circumstances” exist when there is an emergency or something unforeseen occurs that interrupts the continued delivery of essential public services or interrupts continuous processes. It is doubtful whether issues associated with the G-20 would create “exceptional circumstances” within the meaning of the ESA. If there are “exceptional circumstances”; however, an employer can require an employee to work more than the normal limit of eight (8) hours a day, forty-eight (48) hours a week, and/or during a required period free from work.
3. What obligations does an employer have if it decides to close the workplace on Friday, June 25, 2010 and/or through the week leading to the G-20?
Employers will need to determine how to treat their employees’ wages in the event it decides the close the workplace. There are several options: the days may be treated as unpaid days off, vacation days, required to be taken as a floating holiday or paid as if the employees were actually at work. The options will need to be considered with reference to the employer’s contractual and/or collective agreement obligations, as well as statutory requirements pursuant to the ESA.
4. What other factors should an employer consider as it prepares for the G-20?
Public transit (ie. TTC and GO Transit) expect to continue operations in the week leading up to the G-20. Delays are anticipated, however, due to motorcades, large protests and other events. Employees should be encouraged to account for the possibility of delay when planning to attend work. Conversely, employers should be prepared to be flexible regarding the impact of unexpected delays on the ability of employees to attend at work on time.
In conclusion, employers should continue to assess the risks and monitor the security plans as they are released over the coming weeks. During the G-20, Toronto police will provide information about road closings and other disruptions on Facebook and Twitter. If you have specific questions regarding the impact of the G-20 on your workplace, please contact us.