AU’s COVID protocols may not comply with OHS Act
On March 19, 2022, AU’s COVID-19 Planning Committee announced changes to the university’s COVID protocols. While most staff are required to continue to work from home, staff who permitted to be on campus are now no longer required to wear masks.
A number of AUFA members questioned the logic of this change. Essentially, how can COVID be both dangerous enough to warrant working from home and not dangerous enough to require mandatory masking when on campus?
This blog post outlines AUFA’s investigation to date, sets out our assessment of whether this policy change is compliant with the province’s Occupational Health and Safety Act, and asks members how they would like AUFA to proceed.
Background
By late 2021, AU’s COVID-19 protocol required almost all staff to work from home. If staff needed to be on campus, they would require special permission to do so, to be vaccinated and to wear a mask while on site.
In March 2022, with no consultation with AU’s unions or the Joint Health and Safety Committee, AU’s COVID committee eliminated mandatory masking. The elimination of mandatory masking was a surprising change, given that COVID-19 is primarily spread through the air, via both droplets and aerosols.
Under Alberta’s OHS legislation, AU is required to conduct an assessment of the hazard posed by COVID in the workplace, as well as institute controls to eliminate or otherwise reduce the risk posed by COVID to staff members. You can review AU’s most recent COVID hazard assessment here.
AU General Hazard Assessment COVID-19 AU Main Feb. 2022.pdf
AU’s COVID Control Strategy
AU has implemented a series of controls designed to reduce the risk of workplace infection among staff. As noted above, the primary control being used is directing staff to work from home. This control eliminates work-related exposure to COVID for those who work from home.
This control does not protect staff members who must regularly or occasionally work on campus. The OHS Act and Code requires AU to implement additional controls to protect these staff members. AU’s on-campus controls presently include:
Vaccination: AU’s Vaccination Policy and Procedure requires workers prove they have received two doses of an approved vaccine to be onsite. The logic here is that a vaccinated worker is less likely to have COVID (and thus less likely bring it into the workplace) and is less likely to contract COVID during a workplace exposure.
Vaccination does not, however fully control the risk of COVID for those working onsite. The emerging evidence is that two doses of vaccine is not effective at preventing COVID inflection. Further, the effectiveness of vaccination appears to wane over time and AU does not require staff to have a booster shot. Essentially, vaccinated staff can still have, transmit, and acquire COVID in the workplace. This suggests the effectiveness of AU’s vaccination control is moderate and declining over time.
Cleaning: AU has implemented enhanced cleaning protocols in the workplace. This control is intended to remove the virus from surfaces and thus prevent surface transmission of the virus. Cleaning does not control the risk of droplet or aerosol transmission.
Social Distancing: AU recommends staff maintain a distance of six feet from one another in the workplace. Distancing reduces the risk of droplet transmission but does not control spread through aerosols. Aerosols can stay in the air for hours and spread throughout a workspace.
Symptom Exclusion: AU requires staff members who are exhibiting symptoms consistent with COVID to stay out of the workplace. Workplace exclusion is intended to reduce staff exposure to the virus. This control is of limited effectiveness because some COVID positive workers do not exhibit symptoms at all. COVID is also contagious prior to someone exhibiting symptoms.
Analysis
To summarize, AU’s present control strategies and their effectiveness for workers who work on-site are as follows:
Working from home: Not applicable.
Vaccination: Moderate and diminishing
Cleaning: Low
Social Distancing: Low
Symptom Exclusion: Low
An effective control for staff who work onsite is wearing a mask. Wearing a mask dramatically reduces transmission of the virus.
Section 3(1) of the OHS Act requires “Every employer shall ensure, as far as it is reasonably practicable for the employer to do so, (a) the health, safety and welfare of (i) workers engaged in the work of that employer”.
Mandatory masking in the workplace is a control that is reasonably practicable for AU to implement, entailing little cost and having little to no operational impact.
In May, AUFA provided this analysis of the effectiveness of AU’s March 2022 COVID protocols to AU’s COVID Planning Committee and asked the committee to reinstitute mandatory masking. The committee declined this request:
The COVID-19 Planning Committee met to review yours and AUFA’s concerns and to discuss AU’s COVID-19 progress forward. The committee identified that throughout COVID-19 it is has always remained cautious toward the lessening of COVID-19 restrictions and therefore did not take the removal of it’s [sic] masking protocols lightly. The committee appreciates AUFA’s concern on this matter but continues to feel that the controls remaining in place were adequate to control the COVID-19 hazard for those working on site.
Moving forward, the committee will be continuing to recommend adjustment of AU’s controls based on continued assessment of the hazard and with continued guidance from Government Agencies as well as other resources as it works toward reopening its place-based work sites.
Next steps
AUFA’s OHS representatives are seeking member input about how to proceed with this issue. Essentially there are two options:
Take no action: AUFA can decide not to pursue this matter any further. This means that staff members who regularly or periodically work onsite will experience an increased risk of contracting COVID. These staff members can, in part, reduce this risk by choosing to wear a mask.
File an OHS complaint: AU’s unwillingness to require mandatory masking appears to violate AU’s obligations to take all reasonably practicable steps to control the hazard posed by COVID 19 for AU employees who must be onsite.
The anonymous survey below gives you the opportunity to provide direction to AUFA’s OHS representatives.
Rhiannon Rutherford and Bob Barnetson
AUFA OHS Representatives