On January 12, 2021, the Ontario government made a declaration of emergency under the Emergency Management And Civil Protection Act. On January 13, 2021, it issued new regulations with implications for Ontario employers, effective January 14, 2021.
The regulations, including the new Stay-At-Home Order and amendments to the rules for businesses operating in “Stage 1” (currently all regions in Ontario), introduced new requirements for individuals (including “stay at home” rules) and additional requirements for businesses that are permitted to open.
Can My Business Remain Open?
The pre-existing list of businesses permitted to open in Ontario (which are found in Ontario Regulation 82/20) is largely unchanged. With few exceptions, employers who were permitted to open prior to these new regulations can continue to do so, in compliance with the existing and any additional requirements.
What Are the New Requirements for Employers?
Employers who are permitted to open must now ensure all workers conduct their work remotely, unless the nature of a worker’s work requires them to be on-site at the workplace.
Some of the new rules for specific types of businesses include:
- with certain exceptions (e.g. restaurants), businesses that have only been permitted to be open for alternative methods of sale (e.g. curbside pickup or delivery) can continue to do so but now:
- must open no earlier than 7:00 a.m. and close no later than 8:00 p.m., and may not deliver goods to customers outside of those hours, and
- may only provide the item for pickup if the customers ordered the item before arriving at the business premises; and
- only specific types of construction activity are permitted to continue/start.
Businesses must continue to comply with previous requirements, including the following:
- employers are required to have a COVID-19 safety plan, which may be requested by health and safety inspectors and other enforcement officials;
- employers are required to comply with all public health rules, including by ensuring those indoor or in vehicles are wearing a mask/face covering and are physically distancing. The new regulations have made this a shared responsibility; individuals inside a workplace (including employees, customers, etc.) are now also responsible for wearing a mask and physically distancing. Exceptions to this rule continue to apply; for example, there continues to be an exception for persons performing work for the business, provided that they are (i) in an area that is not accessible to members of the public, and (ii) able to maintain a physical distance of at least two metres from every other person while inside the workplace;
- grocery sellers, including big box stores and discount retailers, and liquor sellers continue to be required to limit the number of persons in the place of business to 25% capacity; and
- as discussed in our previous bulletin, businesses which are permitted to open must screen workers for COVID-19 before they go to work or start their shift each day. The Officer of the Chief Medical Officer of Health’s Screening Tool for this screening was updated effective January 7, 2021, and among other changes, it now requires that employers keep records of the screening results to support contact tracing efforts.
The government published a list of workplace restrictions here.
As an Employee, Can I Go to Work?
The new stay-at-home rules restrict individuals from leaving their residence for work purposes unless the nature of their work requires them to leave their residence, including if their employer has determined that the nature of their work requires them to attend onsite at the workplace.
Takeaways for Employers
In support of these new measures, the Ontario government has announced that an enforcement blitz will be conducted to ensure compliance with public health requirements. It should also be remembered that the penalties for breaching public health requirements can be significant.
In light of existing and new rules, employers should consider the following measures:
- to close and/or arrange for remote work unless their business is on the list of businesses permitted to open;
- to consider whether the nature of a given employee’s work requires them to be onsite at the workplace, or whether the employee should be working remotely;
- where it is determined that an employee is required to be onsite, providing employees with written confirmation that they are both permitted and required to continue to attend at the workplace;
- updating all existing public health protocols in the workplace to comply with the new public health rules and restrictions, including the updated Screening Tool;
- ensuring that they have prepared a COVID-19 safety plan, with further information on this requirement available here; and
- complying with any local public health unit requirements.
It should be emphasized that these new requirements are subject to change, and the Ontario government has otherwise provided minimal guidance. As a result, employers should exercise their best judgment until this clarity is provided. We encourage employers to seek legal advice regarding their compliance with these new rules. If you have questions or need assistance reviewing your workforce planning actions, please contact your regular Fasken lawyer.