Safety, compliance and competitiveness challenges for employers

Small and medium enterprises (SMEs) play a critical role in Canadian society and the national economy. SMEs employ a full two-thirds of all private-sector employees in the country, according to Statistics Canada, and account for the creation of roughly 150,000 new jobs every year, according to the Business Development Bank of Canada (BDC).

As the pandemic seems to wane, businesses in this sector face their own unique challenges regarding health and safety, remote work, and tapping the labour market.

In the early days of the COVID-19 pandemic, Canadian public health authorities were quick to respond to the crisis with lockdown measures. Two years later, these measures have been credited as part of the reason for Canada’s relatively low COVID case and fatality rates in comparison to other nations. However, Canada’s robust public health response to the pandemic did not come without an economic cost – a sizable proportion of which was experienced by small and medium-sized businesses.

While federal and provincial governments have created support programs specifically targeted at SMEs, reports indicate that many owners of small enterprises have a less than optimistic outlook about their prospects for the next few quarters. This is particularly the case as government support programs come to an end and debts incurred to stay afloat during these challenging times become due.

These new-normal commercial realities are not the only pressing issues that SMEs will need to consider in planning for their recovery from the pandemic. The legislative and regulatory environment in which Ontario SMEs operate has changed significantly in the last two years. There are also important legal considerations for SMEs as they work to re-build and possibly re-imagine how they interact with their customers, employees, and regulators.

Workplace health and safety in post-COVID Ontario

Ontario’s Human Rights Commission declared COVID-19 a disability early in the pandemic, providing those facing a diagnosis with protection from discrimination. Accommodating employees who must self-isolate or quarantine and who may experience long-term effects from a bout of the disease may pose a significant challenge for SMEs. More than half of these businesses have fewer than five employees on whom they rely to serve their customers and keep their businesses operating.

Employees who are not facing a COVID-19 diagnosis may still be apprehensive about returning to the workplace, particularly in consideration of recent upticks in cases counts nationwide and the possibility of future waves happening. Employers need to consider a reasonable return-to-work plan that provides the necessary degree of safety for workers and visitors to the workplace, whether they be customers, contractors, suppliers or others.

Read more: Employees who have felt protected by PPE and infection control procedures on the job have more positive mental health outcomes compared to those who haven’t, a report found.

It is important to remember that employers are required by the Occupational Health and Safety Act to provide safe workplaces and they must make good faith efforts to comply with public health directives. To satisfy this “good faith” requirement, owners of SMEs are obliged to remain up to date with evolving public health measures applicable in their respective regions and provincial and federal government directives. Having comprehensive policies addressing physical distancing, mask requirements, hygiene and cleaning, and screening for symptoms and other risk factors will help employers meet this requirement while providing workers and clients with confidence that they can safely return to the job site.

Working from home: does it work for SMEs?

Statistics Canada reports that 40 per cent of Canadian workers moved from the workplace to home-based work in the first few months of the pandemic. While the vast majority (80 per cent) indicate that they would prefer to maintain some sort of work-from-home arrangement, many employers are reluctant to permanently adopt remote work models.

SMEs that have been able to offer their employees teleworking options previously should be aware that they are not obliged to continue to do so. The existence of COVID-19 itself does not provide employees with the right to refuse to return to the workplace or make any other form of work refusal, as long as the employer has made the requisite good-faith efforts to mitigate the risks of COVID-19 transmission at work.

Read more: Nine in 10 organizations adopted a formal telework policy or planned to do so, according to a report by BDC in mid-2021.

Regardless of whether their employees work remotely, Ontario SMEs should be aware of the requirement for a “disconnecting from work” policy, as established by the Working for Workers Act, 2021 in late 2021. Companies with at least 25 employers are now required under the Employment Standards Act to craft a written policy about disconnecting from work, which is defined to mean: “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”

Specificity in these written policies is particularly recommended when employees are able to perform their jobs remotely at least part of the time. The ability to be permanently connected to the employer via technology can blur the lines between a worker’s free time and work time at home, and should be adequately addressed in this new policy.

Opportunities to employ new Canadians

The Working for Workers Act, 2021 also mandates substantial changes to the entry of new Canadians into several regulated occupations:

• teachers and early childhood educators
• professional engineers, geoscientists, and architects
• engineering technicians
• veterinarians
• foresters
• accountants
• human resources professionals
• land surveyors
• social workers
• lawyers and paralegals

SMEs who may have struggled over the last several years in filling positions in these fields may, under the new legislation, find skilled workers among the ranks of newcomers to Canada. The new reductions to Canadian entry, experience, and language testing requirements can fast-track immigrants’ abilities to get to work for SMEs who are eager to rebuild.

Ukrainian nationals and their families who have their entry into Canada facilitated by the Canada Ukraine Authorization for Emergency Travel (CUAET) also have the option to obtain fee-exempt work permits. They may also qualify for exemptions from the usual medical restrictions that would prevent them from working in close contact with others. SMEs in fields such as home care and domestic services interested in quickly bringing new employees on board should connect with local agencies supporting these new entrants to Canada as a potential source of new workers.

As Canada’s immigration targets continue to increase and barriers to entering the workforce are removed, SMEs may be a key component to the success of newcomers, as well as the Canadian economy’s post-pandemic recovery.

Paulette Haynes is the founder and managing officer of Haynes Law Firm, a Toronto-based employment law boutique.