All workplaces in Ontario are now required to screen all workers, contractors, volunteers and outside service providers for COVID-19 as a condition of entry to the premises. This new requirement, effective September 25, 2020, comes amidst a rising trend of COVID-19 cases in the province, and will likely attract growing enforcement scrutiny from regulators and enforcement officials as a result.
Amendment to Reopening Regulation for Ontario Workplaces
Pursuant to an amendment on September 25, 2020 to O. Reg. 364/20 ("Rules for Areas in Stage 3") under the Reopening Ontario (A Flexible Response to COVID-19) Act (discussed in a previous bulletin), the person responsible for a business or organization must operate it in compliance with the provincial Chief Medical Officer of Health's advice, recommendations and instructions on screening. Failure to comply can lead to significant penalties, including potentially fines and imprisonment under the legislation.
New Screening Tool for Workplaces
On September 25, 2020, the Chief Medical Officer of Health published a "COVID-19 Screening Tool for Workplaces (Businesses and Organizations)" (PDF - the "Screening Tool") further to this regulatory amendment. The scope of the Screening Tool includes:
- workers, which refers to staff, and is "intended to include students, contractors or volunteers that conduct business or related activities where applicable and appropriate"; and
- essential visitors, which "includes individuals providing a service in the establishment who are not employees or patrons of the establishment (e.g., delivery, maintenance, contract workers)."
The Screening Tool is not meant to include patrons of an establishment, nor "emergency services or other first responders entering a workplace for emergency purposes". However, organizations are not prohibited by the Screening Tool from subjecting these individuals to screening in accordance with applicable legal requirements.
The Screening Tool outlines three screening questions that should be used "at a minimum". Each individual subject to the Screening Tool is to be asked:
- whether the individual has any new or worsening symptoms or signs of COVID-19;
- whether the individual has travelled outside of Canada in the past 14 days; and
- whether the individual has had close contact with a confirmed or probable case of COVID-19.
These screening questions are to be applied before or at the time a worker enters the workplace at the beginning of their workday or shift, or when an essential visitor arrives. If the worker or essential visitor answers "yes" to any of the three questions, then pursuant to the Screening Tool, the individual should be advised that they should not enter the workplace, should self-isolate at home and should call their health care provider or Telehealth Ontario.
The Screening Tool also applies to any outdoor or partially outdoor workplace.
The reference to a "probable case of COVID-19" appears to be a reference to the Ontario Ministry of Health's Case Definition for COVID-19 (PDF), which as of August 6, 2020, defines a probable case as follows:
A. a person (who has not had a laboratory test) with symptoms compatible with COVID-19 AND:
- traveled to an affected area (including inside of Canada) in the 14 days prior to symptom onset; OR
- had close contact with a confirmed case of COVID-19; OR
- lived in or worked in a facility known to be experiencing an outbreak of COVID-19 (e.g. long-term care, prison),
B. a person with symptoms compatible with COVID-19 AND in whom laboratory diagnosis of COVID-19 is inconclusive.
Takeaways for Employers
Prior to this regulatory amendment, employers were already required under O. Reg. 364/20 to operate workplaces in compliance with the "advice, recommendations and instructions of public health officials", which would include public health officials at the municipal, provincial and federal level as applicable. Under the amendment, Ontario employers must now specifically comply with the requirements of the Screening Tool, and to implement such screening at any physical workplaces it operates in the province.
Any employer who was not already screening workers and other visitors to their premises should implement the Screening Tool as a condition of entry. Employers who are already screening workers and other visitors should review their screening protocols in light of the requirements of the Screening Tool.
The Screening Tool has an acknowledgement that it "may be adapted based on need and the specific setting", thus there is some flexibility in how it is implemented. For instance, the acknowledgement recognizes that it may not apply to healthcare settings. However, as a best practice, employers should immediately implement the requirements of the Screening Tool to the fullest extent practical. Given the mandatory language of the Screening Tool, it should be treated as a minimum standard to the extent there is any overlap or conflict with the advice, recommendations, instructions, or resources of other public health agencies or officials.
Employers should get legal advice as they review their workforce planning measures and ensure that appropriate steps are taken to adapt to these new rules. If you have questions or need assistance reviewing your workforce planning actions, please contact your regular Fasken lawyer.
REMINDER: MINIMUM WAGE RATE INCREASES ON OCTOBER 1
On October 1, 2020, certain minimum wage rates will increase in Ontario, including:
- $14.25 per hour for most employees
- $13.40 per hour for students
- $12.45 per hour for liquor servers
- $15.70 per hour for home workers
Employers should ensure their payroll systems are ready to implement the increases. More information is available here.