LANDLORDS: YOUR ON-SITE WORKERS’ HEALTH AND COVID-19

Landlords’ on-site workers are “essential” to help mitigate the spread of COVID-19 in multi-res buildings. The combination of high density residential occupancy and the unknown level of compliance by residents and staff with COVID-19 safety protocols heightens the risk for on-site workers and outside contractors required to attend at the building. For owners and operators of multi-res buildings there is a need to ensure workers’ health and safety and the continuation of on-site building services remain a top priority. Honest communication with workers and implementation of safety protocols will help reduce risk and anxiety for workers and residents. Compliance with “best practices” and training of workers will provide a higher level of workplace safety in a multi-res environment. What follows are a number of recommended steps that landlords may consider to help workers function effectively at your buildings. Training Your On-Site Staff: It would be a failure on the part of an employer to not have already trained on site staff risk mitigation at building sites. Communicating openly with staff about the level of risk; requiring basic compliance with “social distancing”; and, providing proper supplies and equipment will go a long way to establishing confidence for on-site workers when carrying out their increased cleaning and monitoring responsibilities. Many landlords have already recognized their workers enhanced responsibilities and value at this time by issuing bonuses and pay raises to incentivize and reward the loyalty and commitment shown by employees. Landlords should not “challenge” employees who assert that they are ill and unable to work. Those employees should be required to self-isolate; to the extent possible, they should work remotely to communicate any urgent on-site requirements; and, should be told to seek medical attention if symptoms become severe (in such a case they should be instructed to call ahead before entering any medical facility). Landlords should also assess employee risk based on factors such as their age, knowledge of any underlying health issues which may enhance employee vulnerability, and the reliability of employees’ compliance with direction given by the employer with respect to diligent cleaning and isolation requirements. Special consideration should be given as to whether particularly vulnerable employees should have their duties restricted or otherwise given the option to go on leave if the employee is particularly fearful of their work environment. There will be no shortage of younger, lower risk people looking for employment as the economic consequences of this pandemic manifest themselves. Landlords should consider hiring and training such people to provide the increased level of cleaning services; urgent unit maintenance inspections (including risk screening questions to ask occupants prior to entry); common area closures; communication with residents about on site restrictions such as laundry room and elevator usage; and of course, there will be a need for some direct interactions with tenants about rent payment defaults and options for addressing same. Restricting Common Area Facilities, What to do about Laundry Facilities? Landlords should be restricting residents’ access to common area amenities such as fitness rooms, pools/spas, party/meeting rooms etc. Under the Residential Tenancies Act (RTA) such “services and facilities” are “included in the rent”, and in normal circumstances the closure of such facilities may result in the imposition of rent reductions based on a withdrawal of services and facilities. The RTA also provides, however, that a temporary reduction of services and facilities which is of reasonable duration, will not trigger a rent reduction and, in our view, the closure of such facilities during this pandemic will not give rise to liability for rent reductions. There will be some demands (we have already seen some) for “accommodation” by persons asserting that the closure will adversely affect their disability-related needs so landlords should be prepared to address such issues if and when they arise. Laundry facilities, however, can be considered “necessary” and in our view there are financial and health risks associated with the closure of laundry rooms. A better option is to limit the number of residents permitted in laundry rooms and to ensure there are supplies on hand so that residents can observe proper use protocols. You know not all tenants will observe those protocols so there will be a need for increased frequency of cleaning. More details and sources about laundry facilities are set out below. Absent personal contact with a COVID-19 infected person, health authorities maintain that transmission of the virus remains low.[1] However, training your employees to carry out their work functions safely, diligence in social distancing measures, proper hand hygiene, and self-monitoring are all essential in ensuring the health and safety of staff and residents, as well as preventing the spread of the virus in the community. WE ARE LAWYERS, NOT COVID-19 EXPERTS!!…BUT… From a legal perspective, we are qualified to advise landlords to ensure their employees’ workplaces are safe, but you already know that. We are not qualified to say what must be done to ensure that the workplace is safe because COVID-19 and its social impact is unprecedented and there will no doubt be a lot of forensic finger pointing, particularly at landlords, when the virus has run its course in the community. All we can do is offer some information based on research conducted by our staff while keeping in mind the multi-residential setting and the responsibilities that you and your employees are likely to administer in these challenging times. So what follows below are some factors that may inform your decisions and actions in the days, weeks and hopefully not, months to follow. The information provided has been obtained from what, in our view, are reliable sources. There is no suggestion that a failure to strictly follow the guidance and recommendations set out below will trigger legal liability of landlords. There are limits to what can be implemented given the lack of protective equipment and interruptions to supply chains but landlords’ resourcefulness and innovative instincts to protect workers and residents will hopefully be aided by the information which follows. WHAT BEST PRACTICES CAN BE IMPLEMENTED BY LANDLORDS AND STAFF? The following guidance is applicable to staff members working on the front-lines in multi-residential buildings.

1. Cleaning Common Areas After Possible Contamination: When a commonly used in-door area, such as a multi-residential lobby or common laundry room, needs to be cleaned following confirmation of a case of COVID-19 in an individual who has had access to the in-door area, the area should be immediately blocked off for cleaning. It is suggested that the area remain empty and blocked off for at least 24 hours before the cleaning process begins. This is because the current research indicates that the COVID-19 virus may remain on surfaces for up to a few days. However, it is recognized that in some instances this will not be practical and that cleaning will need to begin immediately so that the area may be used by residents again. In such instances all windows and doors should be opened to increase air circulation for the protection of those cleaning the area.[2]
2. Encourage Self-Monitoring: Employees who have had access to areas frequented by residents who have tested positive for COVID-19 should be reminded to self-monitor themselves for symptoms and immediately leave work and self-isolate if they begin exhibiting symptoms.[3]
3. Consider Allocating Work Based On Risk: If possible, allocate those tasks that require face-to-face contact between residents and employees away from those employees who have advised you that they are high for risk severe COVID-19. High risk individuals include those who are over the age of 55 and those who are immune compromised.[4]
4. Social Distancing in Common Areas: If possible, employers should consider limiting or encourage limiting the number of residents using a common area to promote social distancing. Scheduling use of the laundry room, may help promote social distancing. Likewise, to protect employees and residents, employers should consider closing off the area where work needs to be completed so that employees may complete their work without the risk of exposure. Scheduling cleaning times and giving residents notice may aid in this transition.

Personal Protective Equipment & Cleaning Solutions Employers have a duty to provide a safe working environment to their employees, relative to job duties.[5] In the midst of the COVID-19 pandemic, to ensure the safety of employees, employers should try to ensure that personal protective equipment (PPE) is available for those individuals working inside the building. Further, employers should ensure that all employees using cleaning solutions are aware of the importance of following the manufacturers’ label, not just for effective use of the product, but for the employee’s own safety when using the product.

1. Disinfectant Solution: Disinfectant solutions should be used to clean all common areas that residents have access to. However visible dirt and grim should be cleaned away using soap and water or appropriate household cleaners. Only once the surface is visibly clean should disinfectant solutions be used. Since many household disinfectants and alcohol-based solutions are currently hard to find as a result of the pandemic, diluted bleach solutions are effective against the COVID-19 virus and may be used. However, for the safety of employees cleaning with a diluted bleach solution, proper dilution procedures must be followed. Most importantly, ensure that the area being cleaned is properly ventilated and that employees are instructed that bleach should never be mixed with other cleaners. [6]Proper bleach diluting procedure can be found at: https://www.cdc.gov/coronavirus/2019ncov/community/organizations/cleaning-disinfection.html
2. Disposable Gloves: Disposable gloves should be used for all cleaning tasks, including emptying garbage bins. Staff should be advised that gloves should be removed and disposed of immediately after completing a cleaning task. Following which, staff should immediately wash their hands with soap and warm water or sanitizer.[7]
3. Gowns: If available, gowns should also be used by staff responsible for cleaning areas that have potentially been contaminated with the virus. Gowns can protect clothes from the possible spread of the virus and can also protect staff from spills of cleaning solutions. Gowns should also be immediately removed following completion of cleaning. If the gowns are disposable, staff should ensure that they are disposed of. If the gowns are reusable, they should be washed in the warmest appropriate water setting. Advise staff and residents not to shake dirty laundry, as shaking can increase the likelihood of the virus dispensing through the air.[8]
4. N-95 Facial Masks: The World Health Organization does not currently recommend universal use of medical masks to protect against COVID-19 infection. If available, N-95 masks provide protection against COVID-19, filtering out 95% of small particles in the air and would be effective in minimizing the risk staff have of contracting the virus when working in a suspected contaminated area.[9] However, as a result of the current COVD-19 pandemic, N-95 masks are extremely hard to find and priority has been allocated to frontline healthcare workers. It is unlikely that N-95 masks will be widely available for use until the supply chain is restored. Further, the effectiveness of N-95 masks may be reduced if not properly fitted. Unlike the general public, healthcare workers in Canada are annually fitted for N-95 masks to ensure proper sealing. An unfitted mask will allow leakage and effectiveness will be reduced.[10]
5. Surgical Masks: Surgical mask are not effective protection against the COVID-19 virus. These masks are not sealed and allow for the inhalation of smaller airborne particles. Users should not rely on these masks for complete respiratory protection. However, if available, they may be used by cleaning staff for protection against splashes of chemical cleaning agents and bodily fluids (including respiratory droplets caused by sneezing, an avenue of transmission of the virus). Still it should be noted that surgical marks are used primarily to protect others from the wearer, not the wearer from others.[11]
6. Eye Protection (Safety Glasses): As staff completing cleaning tasks and repairs will not be directly involved in the care of those infected with COVID-19, eye protection is likely not necessary to protect from exposure to the virus. However, depending on the cleaning solutions being used, eye protection may be required to comply with the Occupations Health and Safety Act and/or the manufacturer’s recommendations.[12]

Suppliers of Equipment Amid the COVID-19 pandemic, Ontario is currently dealing with critically low levels of PPE. The World Health Organization, the federal government, and the provincial government have requested that manufacturers of PPE increase production immediately.The following manufacturers supply PPE to Canadian businesses. However, current availability of supplies is low and priority remains on providing healthcare workers with necessary supplies.

• 3M Canada: 3M is increasing production of PPEs, however priority will be given to responding to public health and government needs and existing customers.[13]
• Grainger Canada: Availability of supplies is low and order fulfillment is subject to business verification.[14]
• Online Retailers (Amazon), Hardware stores, and Markets (Wal-mart, Costco, Grocery Stores, & Drug Stores): Smaller quantities of PPEs can normally be found online and in stores, however due to demand availability may be scarce and costs are rising.

Employee Return to Work Guidelines

1. Employees With Possible Exposure: At present, all individuals returning from outside of Canada and all individuals who were in close contact with an individual diagnosed with the COVID-19 virus are to self-isolate for 14 days. Frontline employees of multi-residential units who are in either of these situations will therefore be unable to attend the building(s) where they work. If the employee lives in the building where they work, they should not vacate their unit. In the event that the employee remains completely symptom free during the 14 day period of self-isolation, they may return to work to fulfill the duties of their employment.[15]
2. Employees Who Have Tested Positive: Health Canada and the provincial government have not yet released guidelines on when individuals with confirmed COVID-19 may return to work. However, it is likely that the ability to return to work will depend on consecutive negative COVID-19 tests and the resolution of all symptoms.[16] Further guidance will likely be provided in the coming days as more Canadian are diagnosed and recover from the virus.

If you have any questions, please do not hesitate to contact Joe Hoffer at hoffer@cohenhighley.com or 519-672-9330.

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[1] Centres for Disease Control and Prevention, ” Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in Healthcare Settings to Patient with Coronavirus Disease (COVID-19)” < https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html> (March 7, 2020).[2] Centres for Disease Control and Prevention, “Interim Recommendations for US Community Facilities with Suspected/Confirmed Coronavirus Disease 2019” < https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html> (March 6, 2020).[3] Supra note 1.[4] Centres for Disease Control, “Interim Guidance For Homeless Service Providers To Plan And Respond To Coronavirus Disease 2019 (COVID-19)” < https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/plan-prepare-respond.html> (March 9, 2020).[5] Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25.[6] Supra note 2.[7] Ibid.[8] Ibid.[9] World Health Organization, “Coronavirus Disease (COVID-19) advice for the public: when and how to use masks” < https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/when-and-how-to-use-masks> (2020).[10] Centre for Disease Control and Prevention, “Frequent Asked Questions about Personal Protective Equipment” < https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html> (March 14, 2020).[11] Ibid.[12] Ontario Ministry of Labour and Skills Development, “Chemical Handling” < https://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_chemical.php> (September 23, 2016).[13] 3M Canada, “Alert: Increased Demand for Respiratory Protection Products” < https://www.3mcanada.ca/3M/en_CA/worker-health-safety-ca/> (2020).[14] Grainger Canada < https://www.grainger.ca> (2020).[15] Health Canada, “Coronavirus Disease: Prevention and Risks” < https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink> (March 21, 2020).[16] Centres for Disease Control, “Criteria for Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 (Interim Guidance)” < https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/hcp-return-work.html> (March 16, 2020).