Voiceover: This is The Every Lawyer, presented by the Canadian Bar Association.

Marleice: It’s the topic on everyone’s minds these days: what do you in a pandemic? And for employment lawyers specifically how do you protect the workplace? I’m an eternal optimist, but even I’m having trouble not going down the path to worst-case scenario when it comes to the Novel Coronavirus.

Conveniently, the CBA has a guide to navigate just that. In today’s episode of The Every Lawyer we’re chatting with Sheila Osborne-Brown. She co-authored the CBA’s Pandemics and the Workplace Resource for Lawyers. It helps lawyers advise clients on protocol during a pandemic and it can also help them assess the effect of a pandemic on their own workplaces.

Shelia is Senior Counsel and Team Leader at the Canadian Human Rights Commission. She does both litigation and legal advisory work. She’s been actively involved in the CBA, and that includes serving on the Committee on Professional Development, the International Initiatives Committee, and the National Labour and Employment Law Section as an executive. She’s a member of the Bars of Ontario, Newfoundland and Labrador, and California.

Sheila, thank you so much for being here with us today.

Sheila Brown: Thank you so much, Marliece. I’m really happy to be here.

Marliece: I wanted to start with the basics, and that’s what we actually mean by the word pandemic. I think a lot of us, including myself, use it without really understanding its definition.

Sheila Brown: Mm-hmm, yeah. So essentially there are various definitions, and I think if you go on various websites you’ll see that there’s slight variations. But essentially it’s an epidemic that occurs worldwide and crosses international boundaries, usually affecting a large number of people. And usually it would be a specific disease to which people have little or new immunity.

Marliece: OK, that makes sense. And so we’ve heard of H1N1 and SARS that were two pandemics in recent history, do we know if the Novel Coronavirus is at that level yet?

Sheila Brown: I just actually heard a recent broadcast from the World Health Organization and the answer, as of today when we’re recording, is no, it is not.

Marliece: OK, and today we’re February 24th. That actually leads me directly to my next question. Who is the body that declares a pandemic? Is it the World Health Organization.

Sheila Brown: Yes, it is. On an international scale. But with respect to Canada it would be the Federal Government.

Marliece: OK, and do we know if the Federal Government is following the lead of the World Health Organization or are they using different evidence to make their determination?

Sheila Brown: Well, I mean I’m certainly not a public health expert.

Marliece: Right, fair enough.

Sheila Brown: But yeah, but you know, generally of course Canada is going to be paying close attention to the World Health Organization and I keep an eye on the Public Health Agency of Canada website, which keeps Canadians informed. And in fact the definitions that I mentioned about a pandemic comes from that website, and materials that are available through that website.

So generally Canada though, will of course look at the national situation before declaring whether or not there’s actually a situation of a pandemic in Canada or, you know, it could be an epidemic that Canada might be looking at. But what’s happening worldwide is not necessarily what’s happening in Canada so it’s very context-specific.

Marliece: You mentioned a resource earlier that you go to for Canada-specific information. Would you might just reiterating what it is for our listeners?

Sheila Brown: Yes, so generally you can just Google Public Health Agency of Canada. There’s lots of information there. The definitions that I referred to earlier are from that website as well as from – there’s a influenza preparedness planning guide that’s available through that website, so lots of information there.

Marliece: OK, so for any time of public health information, the Health Agency of Canada is a really good resource for Canada-specific information.

Sheila Brown: Yes, exactly. And that interesting that you mention that because there are many difference types of information there dealing with public health. So it’s not just to do with something that might be a more serious situation now at this time, but it could be just day-to-day issues with regard to public health.

Marliece: Great, so a good resource. And speaking of good resources, the CBA Pandemic Guide is an excellent resource in this area. And as I was reading through it I realized how complex an area of law it is because there’s so many different issues that come into play. And the guide does a really nice job of talking about what the case law says in certain circumstances but I wanted to talk to you more about big picture first. And I wanted to start with some best practices for employers when it comes to dealing with any potential pandemic scenario. I’m talking about things that are fairly easily to implement and protect as many people as possible.

Sheila Brown: Yes, so thanks so much for your comments about the guide. Yeah, so the guide’s called Pandemics and the Workplace: A Resource for Lawyers, and it was spearheaded by the Labour and Employment Law Section executive back 2014, and is available through the CBA website. It’s actually a really good start for lawyers who might be advising employers with respect to what do you need to do to be prepared in the event that there is either an epidemic or the unfortunate case, and there would be a pandemic.

And we have a lot of information there about getting ready, doing a workplace pandemic plan. This is not unfamiliar I think to lawyers and to employers and to large organizations, because it is a part of what you would think of as risk management. And it could be relevant in many types of situations, including in Canada. As we know we have lots of snow, lots of storms in the winter, and sometimes businesses have to shut down and have certain types of contingencies that have to be put in place when there’s an emergency situation.   

Well it’s a similar thing for a pandemic plan, so you would want to cover things like communications planning. How are you going to talk to your staff? Who should employee’s contact if they’re not well? Is the business going to remain operational? What do you have to do to remain operational? Which positions are identified as positions that really have to be filled during a time when the operations might be affected because, say for example, people are sick, or people have to be home taking care of sick family members.

And so all these types of things need to be put in place. Also I think it’s important that lawyers who are advising employers would say to them, “Look, it’s not necessarily that when you’re in the midst, say, of an emergency situation that everything has to go into place all of a sudden.”

Marliece: Right.

Sheila Brown: Yeah, people need to look at risk management in a time when maybe the emergency isn’t actually present in Canada or in your particular region, but you want to be careful. You want to take precautions. And again that’s a part of good risk management; for example promoting increased cleaning procedures, reducing travel for example, possibly offering an onsite flu-shot clinic. So those types of things also are really important in terms of being prepared.

Marliece: OK, so it sounds like some of the best practices in this area right now are to get a plan in place and then promote health and risk management procedures like lots of hand washing, flu clinics and things like that.

Sheila Brown: Yes, exactly, yeah. And other things that, you know, employers will want to think about. And sometimes this can happen just in the regular day to day as well, because we know there’s more and more now situations and workplaces where people are tele-working for example.

Marliece: Right!

Sheila Brown: They’re working a lot of their day or maybe three days a week from home. And so an employer will want to put their minds to, “Can I actually increase that if there’s a time when there’s a lot of sickness in a particular area where my business is?” And so can more employees work from home for example? So that’s something to think about.

Marliece: That’s a really good point. So using technology and extending work-from-home policies that you already have in order to keep people out of the workplace as much as possible.

Sheila Brown: Exactly.

Marliece: OK. When it comes to the pandemic plan, if a workplace doesn’t have one right now – and again we’re in about the end of February – is this something that everyone needs to drop what they’re doing and draft immediately or do you think it’s something that can wait?

Sheila Brown: I actually think that if – and this is more my personal view I guess – but I think that it’s important that employers or businesses that don’t have a pandemic plan would actually, yes, start to work on one. And I don’t mean that they have to drop everything and treat it as an emergency; I don’t think that’s necessary. But I do think it’s something that people should really put their minds to and should start now.

And you know, some workplaces – and we talk a bit about this in the guide – have health and safety committees that are made up of – they’re actual formal committees and they’re made up of employer representatives, like management representatives and employee representatives. And whether there is one of those committees or not, that’s a good way to work on a pandemic plan, to have input from various parts of the organization so that it’s a very well-informed plan. So that’s something that I think, yes, it’s an essential resources for businesses to have.

Marliece: OK, so we don’t just want one employment lawyer drafting it off the side of their desk, we want input from a variety of stakeholders?

Sheila Brown: Mm-hmm, and it could be something that a lawyer would give advice on what should be included, and could even give perhaps some kind of a template or help to do the basics on the foundation of a plan. And then there would be input of course and that would be flushed out by the people who are actually in the business and know the day-to-day operations of the business.

Marliece: OK, speaking about day-to-day operations of the business, what are some differences in the workplace during a pandemic? I know there’s a really helpful chart at the beginning of the guide setting out some of them, and I was just wondering if you could give us an overview of what some of the big differences could be during a pandemic in a workplace.

Sheila Brown: Yeah, sure. And yes, we do have a chart dealing with that and it’s divided into an inter-pandemic period, which would be when it’s essentially pretty well business as usual, a pandemic alert period when it’s at the stage where you think, “Well, it’s possible there could be a pandemic. There isn’t one now but we’re getting ready; we’re putting some measures in place,” and then the pandemic period.

And in an actual pandemic period, which we certainly hope will be a very, very infrequent occurrence, it could be that for example many of the decision makers in the business are ill and unavailable. So that begs the question, who is going to make a decision now? So if you’ve got someone for example who’s normally the person that looks at accommodation for employees under human rights legislation, well who’s going to do that now? And which supervisor is going to do that?

What about recordkeeping staff? Some of the recordkeeping staff could be ill or some of the people in human resources who are giving the really germane advice with respect to dealing with employees who may be ill, who may not be able to come into work. And so that’s something to think about.

As well, you’re going to have a situation where decisions might have to be made very quickly. That will also be affected by the legislation that’s in place. So there’s various types of legislation that could come to be relevant during a time of a pandemic, including occupational health and safety legislation, emergency measures, public health legislation.

And sometimes, for example, in a normal situation when you might ask for a doctor’s note, you’re not going to do it in the time of a pandemic because there’s some kind of a direction, say a public health directive, that indicates that people have to stay at home in certain circumstances, or shouldn’t go to the doctor in certain circumstances, instead should be calling to see what they should do. So that’s also something that could be different in the time of a pandemic.

Marliece: OK, so we have – and I as actually going to ask you a bit about the legislation in a minute, so that’s great that you brought it up already. So we have legislation in place, potentially, that will affect our procedures and decision making. We have some key decision makers who might not be available in the workplace, and so those are some really big differences during a pandemic outbreak.

Sheila Brown: Mm-hmm, absolutely.

Marliece: OK, and so you mentioned some of the legislation. I know it’s going to change from jurisdiction and it’s kind of going to be in a flex. Some will be in effect, some won’t be. But what types of legislation are we dealing with generally when it comes to responding in pandemics?

Sheila Brown: Yeah, so we’re dealing with legislation that will address public health issues and also emergency measures legislation. Now that differs from province to province, territory to territory, as well as on the federal level. And one thing that people will see if they look at the guide is that we did try to draw from legislation from various different jurisdictions.

And but of course people have to check what’s relevant in their own jurisdiction, and as well they will see the type of legislation set forth in the guide. But then they’re going to want to look and see, hmm, has that been updated? Have there been changes to the legislation as well as case law?

Marliece: OK great, thanks. And so one thing just legislation triggered for me is privacy rights. Because privacy rights for employees can really change during a pandemic. Is that right? Will you explain that a bit more?

Sheila Brown: Yeah, so it is something that’s very relevant, the right to privacy during a pandemic. And of course it’s always relevant in our day-to-day lives, both as employers, employees and just as citizens. But in a public health emergency the powers to collect and use and disclose information can be different, and that’s because there are considerations with regard to the collective public health of a population, of a workforce.

And if people are looking for a resource that discusses this, the Office of Privacy Commissioner of Canada has a good resource called Privacy in the Time of a Pandemic for organizations.

Marliece: Oh great.

Sheila Brown: Yeah, and it actually was published both by the OPC as well as the Privacy Commissioners of British Columbia and Alberta. And so that’s quite useful. There’s also a resource for employees that’s on the OPC website. So that can be useful and sort of explains some of the differences in the time of a pandemic.

Now and at any time when it comes to privacy, if there has to be some kind of release of information for example you want to make it as small as possible. You try to go on a need-to-know basis. And also, if indeed you have to get more information from employees than you normally would because it’s a time of a pandemic, you want to be transparent with the employees about why, what is the authority to collection this information? What’s the legislative authority? But also what’s the reason why? What’s the health reason why?

And I think there has to be some common sense used as part of it, and practicality as well. I think everyone realizes that in the time of sickness, that might be either in an epidemic or a pandemic, that there might have to be different measures put in place. But I think it’s important to explain why.

Marliece: Yeah, give people the why as to why you’re collecting more information than you normally would have the right to. I think that’s some really topical advice. I mentioned earlier H1N1 and SARS, which are two most recent pandemics in our history. Did we learn anything from them when it comes to this area?

Sheila Brown: Well certainly if you look at some of the resources on various websites, I think it is recognized that we did – and when I say we I mean society in general I guess, as well as healthcare providers and governments did learn from – particularly I think from the SARS virus and everything that happened around that. And you know, there’s certainly a lot of reports that are available on SARS and the lessons learned from SARS as well as from H1N1.

But I think it certainly points out that there needed to be communication and there needs to be good communication. I’ve certainly read that in some of the resources that I’ve seen on various websites: communication between governments, so between federal government, provincial and territorial as well as municipalities. And I think if you look at it in an employment context, it also shows the importance of good communication between business and the businesses’ employees.

And I think something to think about as well is that one thing that perhaps has been discussed more since we did the guide is the advent of accessibility legislation in some provinces as well as now in the federal context. And that deals with communication and the importance of accessible communication. And so business have to make sure that when they are communicating through their employees that they do it in a way that it’s available to everyone and take into account if people have issues with regard to being able to hear or being able to see. And so it will be important that that communication is done in a way that the technology makes it available to everyone.

Marliece: OK, so strong communication between different levels of government, globally, and then also between the organization and its employees in an accessible way.

Sheila Brown: Yes, and I wanted to point out again that I’m certainly not a public health expert but in terms of employment situations and dealing with accommodation for example, dealing with care-giving situations that might arise when people are ill at home and either your employee is ill or they have to take care of either a child or someone else in their family who’s sick, it will be important to communicate with them so say, “This is how we’re going to arrange it, this is how we’re going to support you to do your work. Or if you can’t do your work, here’s how we’re going to arrange things.” So it’s very important to communicate that.

Because, and this is something we haven’t talked about I know, but a time of a lot of illness, pandemic or epidemic, it’s a difficult time for people. They’re worried; there are a lot of unknowns. And as well they might be dealing with grief. Someone they know may have died or be quite ill, and so I think it’s really incumbent on employers to really be sensitive to that, although obviously they have to take care of their employees and take care of their clients from a public health perspective. They also have to be sensitive to some of the mental health issues that arise during a time of great illness.

Marliece: Right, you know I wouldn’t have thought about that, but that’s such a – yeah, it’s such a strong point that people are going through grief and other things as well. So mental illness is really just as important as physical health.

Sheila Brown: Mm-hmm.

Marliece: So I don’t want to take up too much more of your time, and you spoke a little bit already about this question, but I know the guide was published in 2014 and this is an emerging area of law. One of the big changes you talked about was the advent of accessibility legislation since the publication of the guide. Is there any other kind of big changes you can think about in this area?

Sheila Brown: Well just perhaps that people are more aware of the possibility of a pandemic. Certainly I think that SARS and H1N1 were really wakeup calls and people became very much aware of the seriousness of a potential pandemic situation. You know, once thing that we say in the guide is that widespread illness is inevitable. And I’ve read this in other places as well, that a new contagious disease giving rise to widespread illness, and potentially also deaths, has happened before. And this will happen again.

And so this is one of the reasons why the planning part is really important, and it’s an important risk management strategy. I don’t want to be alarmist and I think it’s important to not be raising something that’s going to cause people to panic and that type of thing, but I just think that it’s a responsible part of day-to-day business I guess to manage risk, to prepare for contingencies.

And I think pandemic planning or just planning for some kind of an epidemic for example, even if that means that it’s a season when there’s a lot of the regular influenza that might be more prevalent. That also brings in some of these issues that we talk about in the guide.

Marliece: OK, well I think that’s a really good note to end on. So no need for alarm but part of risk management is putting these plans in place.

Sheila Brown: Mm-hmm, yes.

Marliece: OK, well Sheila thank you so much for your time and for your expertise today. It was a pleasure to chat with you.

Sheila Brown: Well thanks so much. It was a pleasure to chat with you.

Marliece: What a fascinating and topical discussion today. Thanks to Sheila for explaining the ins and outs of this area. I’m off to wash my hands right now. You should too.

If you want to learn more, the toolkit can be accessed through the CBA website under the sections and Community, Labour and Employment Resources tab, or at CBA.org/pandemics. We’d be interested in hearing your own experiences with this area and your thoughts on how to keep your workplace employees and clients safe during a pandemic.

Tweet to us at CBA_News, or you can reach me at my handle @MarlieceSS. We are on Spotify, Apple Podcast and Stitcher wherever you listen podcasts. Subscribe to receive notifications for new episodes and leave us a review.

We also have a podcast in French called Juriste Branché. Thanks for listening. Stay tuned for the next episode.