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Jan 14, 2021

New COVID-19 Measures Introduced by Province and City of Toronto: What a Stay-at-Home Order and the New Reporting Obligations Mean for Employers

By Lorenzo Lisi, Daria (Dasha) Peregoudova and Stacey Blydorp

The Ontario government, following a review of current COVID-19 modelling trends, announced on January 12, 2021, a stay-at-home order that took effect on Thursday, January 14, 2021 at 12:01 a.m. The order was issued alongside the declaration of a second provincial emergency made under s. 7.0.1(1) of the Emergency Management and Civil Protection Act (EMCPA). The measures enacted under the order and state of emergency will remain in effect across Ontario for at least 28 days, until February 11, 2021.

While details (and hopefully clarification) have been promised, here is what we know so far:

Provincewide Stay-at-Home Order

The stay-at-home order requires employers to ensure that any employee who is able to perform their work remotely does so. There is a limited exception for those whose nature of work requires them to be on-site. Individuals are instructed to stay home with exceptions for permitted activities such as going to the grocery store or pharmacy, accessing health care, for exercise or for work that cannot be done remotely.

The classification of work considered essential remains largely the same with a few amendments, made to O. Reg. 82/20 under O. Reg. 10/21. Noteworthy changes are as follows:

  1. Construction – new limits to non-essential construction, including below-grade construction, but exempting survey work. The full list of permitted commercial and residential construction projects can be found here.
  2. Retail Hours – retailers that have been allowed to operate under lockdown are permitted to remain open, however, hours of operation may be reduced. Non-essential retail stores must open no earlier than 7 a.m. and must close no later than 8 p.m. with the exception of liquor stores which must be open no earlier than 9 a.m. and close no later than 8 p.m. A full list of these restrictions can be found here.
  3. Short-term Rentals – hotels, motels, cabins, cottages, resorts and other shared rental accommodation must only be provided to individuals who are in need of housing.

The latest provincial measures add an increased emphasis to workplace safety and inspections with the introduction of the Ministry of Labour, Training and Skills Development’s campaign, “Stay Safe All Day.” The inspections will focus on workplaces with reported COVID-19 outbreaks and those with high risks of transmission, including manufacturing businesses, warehouses, distribution centres, food processing operations, construction projects, long-term care and retirement homes, and essential workplaces that are accessible to the public (i.e. grocery stores).

The province had also indicated that it will be ramping up enforcement for individuals and companies. Provincial offences officers have the authority to issue tickets to employers, business operators and companies who do not enforce requirements under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) and the EMCPA. Officers also have the authority to temporarily close a premise where such requirements are not being followed or enforced.

Toronto Public Health Introduces Workplace Reporting Measures

On the municipal front, effective immediately, an employer* operating in the City of Toronto is required to notify Toronto Public Health when two or more people operating in its workplace test positive for COVID-19 within a 14-day interval.

On January 4, 2021, Toronto’s Medical Officer of Health issued a Letter of Instruction to employers in a further effort to stop the spread of COVID-19 in the workplace. This comes in addition to previous prevention measures made in the fall of 2020, which focused on screening employees and essential visitors before entry to the workplace premises. These instructions expand the responsibilities of employers permitted to operate under the Reopening Ontario Act.

Under the new reporting obligations, if an employer becomes aware of two or more people who test positive for COVID-19 within a 14-day interval in connection with the workplace premises, it must:

  1. immediately notify Toronto Public Heath, the Ontario Ministry of Labour, Training and Skills Development and/or other relevant government authorities;
  2. appoint a designated contact person at the workplace to coordinate and work with Toronto Public Health to implement additional measures as recommended;
  3. ensure that accurate and updated contact information for all workers is available to be produced to Toronto Public Health within 24 hours of request; and
  4. cooperate with infection prevention and control personnel from Toronto Public Health. Cooperation may include allowing personnel entry into the workplace for inspection and/or to support infection prevention and control measures.

Employers must also comply with the various mandated infection prevention measures. The following measures must be present in workplaces, where applicable:

  • hand sanitizer (recommended 60-90% alcohol content) and hand washing facilities available to employees in work and rest areas;
  • rigorous and frequent cleaning in all high-touch areas (i.e. elevator buttons, doorknobs, checkout counters, public washrooms, etc.) and those areas accessible to the public;
  • regular assessments of heating, ventilation and air conditioning systems to ensure they are functioning well;
  • minimizing instances where more than one individual is in a vehicle for driving associated with work. If unavoidable, face coverings are to be worn and windows open;
  • physical distancing by at least two metres throughout the workplace and during eating and rest periods; and
  • installing physical barriers (i.e. plexiglass) where physical distancing is not possible.

In addition, employers must ensure employees are aware of their entitlements to income replacement and workplace-related benefits in the event they have to isolate due to COVID-19 symptoms, testing or close contact.

Under these new measures, Toronto Public Health may publicly identify workplace-related outbreaks in the form of an online list, updated weekly. Such identification will be done by industry, categorizing workplaces into one of eleven categories such as grocery stores, food processing sites, warehousing, construction and manufacturing, etc.

As mentioned, there is still a lot of clarity required. In the meantime, the best approach is to ensure that if employees can work at home, they do so. Employers are encouraged to make the requirements clear to their employees, issue the appropriate communications and ensure that there is a record of compliance.

Do not hesitate to contact a member of the Aird & Berlis Workplace Law Group should you have any questions.

 

* schools and school boards, licensed child care programs, and health care providers and entities are exempt from these instructions as they are governed by industry-specific legislation.

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