Details of Emergency Declaration and Impact on Ontario Employers Now Available

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As we advised readers in our earlier Focus Alert, the Province of Ontario has declared a second provincial emergency in relation to the COVID-19 pandemic. In addition to the stay-at-home order that took effect as of 12:01 a.m. on Thursday, January 14, 2021, the government has now introduced a new regulation that amends the existing regulation setting out the rules in place when the current shutdown began on December 26, 2020. The following article summarizes the new or amended requirements applicable to various Ontario employers during the current state of emergency, which were effective as of January 14, 2021 and are expected to last until at least February 11, 2021.

 

Stay-at-Home Order

The current stay-at-home order requires all individuals in Ontario to remain in their residence at all times, unless to leave is necessary for certain prescribed purposes. The purposes are broadly defined to include the following:

  • Working, where the nature of the individual’s work requires the individual to leave their residence, including where the individual’s employer has determined that the nature of their work requires them to attend at the workplace;
  • Attending school or childcare;
  • Obtaining certain goods and services;
  • Assisting others who require support or assistance, including providing care for an individual in a congregate care setting, and transporting a member of one’s household anywhere they are permitted to go under the order;
  • For health, safety or legal purposes, including to exercise and to avoid an imminent risk to one’s health or safety;
  • Travelling to another residence under certain conditions, making arrangements to sell or lease a residence, and moving;
  • Travelling to an airport, bus station or train station for the purpose of travelling outside of the Province;
  • Attending or making arrangements for a wedding, funeral or religious service, rite or ceremony that is permitted under the Stage 1 Order;
  • If the individual lives alone, gathering with the members of a single household; and
  • Obtaining goods or services necessary for the health and safety of an animal, including obtaining food and supplies and exercising the animal.

 

“Work from Home” Requirement

As anticipated following the Ontario government’s announcement on January 12, 2021, the new regulation requires Ontario employers to ensure that all employees work remotely unless the nature of their work requires them to be on-site in the workplace. The wording of the stay-at-home order, summarized above, suggests that it is the employer that may determine whether the nature of the employee’s work requires them to attend at the workplace.

Government employers, as well as any persons or publicly funded agencies or organizations that deliver or support government operations or services, including in the health care sector, are exempt from this requirement.

 

Employees Responsible to Mask

In addition to employers having a responsibility to ensure that employees and others who are indoors at their premises wear masks, all individuals – including employees – now also have a responsibility under the new regulation to ensure that they are appropriately masked. The pre-existing exceptions remain, including the entitlement of an employee to remove their mask when they are in an area of the employer’s premises that is not accessible to the public, and they are able to maintain a distance of at least two metres from every other individual in the indoor area.

 

Restrictions Applicable to Certain Businesses

Reduced Hours:

The following retailers are permitted to be open only between the hours of 7:00 a.m. and 8:00 p.m. (including for the delivery of goods to customers):

  • Safety supply stores, by appointment only;
  • Businesses that sell, rent or repair assistive, mobility or medical devices, aids or supplies, by appointment only;
  • Optical stores that sell prescription eyewear to the public, by appointment only;
  • Stores that sell liquor (including beer, wine or spirits);[*]
  • Shopping malls (except for providing access to businesses permitted to open outside of those hours, but which only have public entrances opening into the interior of the mall);
  • Motor vehicle retailers; and
  • Outdoor markets.

Retailers open for curbside pickup (including cannabis retailers, hardware stores, pet supply stores and garden centres) are similarly restricted to opening hours of 7:00 a.m. to 8:00 p.m. (including for the delivery of goods), and customers must have ordered their items prior to arriving at the premises.

 

Reduced Capacity:

Stores that sell liquor and/or groceries may remain open subject to all other existing requirements, but at a maximum of 25 percent capacity and subject to members of the public being able to maintain two metres’ physical distance from every other person.

 

Closure:

All concert venues, theatres and cinemas must close.

 

Construction Industry Restrictions

Under the new regulation, construction activities/projects and related services (including land surveying and demolition) may proceed during the state of emergency if they:

  • Are associated with the health care sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;
  • Ensure safe and reliable operations of, or provide new capacity in, provincial infrastructure, including the transit, transportation, resource, energy and justice sectors (beyond day-to-day maintenance);
  • Support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage, or in the supply of resources;
  • Support the operations of, or provide new capacity in, schools, colleges, universities, municipal infrastructure or childcare centres within the meaning of the Child Care and Early Years Act, 2014;
  • Are required for:
    • The maintenance and operations of petrochemical plants and refineries,
    • Significant industrial petrochemical projects, where preliminary work commenced before January 12, 2021, or
    • Industrial construction and modifications to existing industrial structures, limited solely to work necessary for the production, maintenance or enhancement of personal protective equipment, medical devices such as ventilators, and other identified products directly related to combatting the COVID-19 pandemic;
  • Would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
  • Were commenced before January 12, 2021 and would:
    • Provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
    • Provide additional capacity in the operation and delivery of Information Technology services or telecommunications services;
  • Support the operations of broadband Internet and cellular technologies and services;
  • Are related to residential construction projects where:
    • A building permit has been granted for a single family, semi-detached or townhomes,
    • The project is a condominium, mixed-use or other residential building, or
    • The project involves renovations to residential properties and construction work that was started before January 12, 2021.
  • Prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;
  • Are necessary to temporarily close construction sites that have paused, or that are not active, in order to ensure ongoing public safety;
  • Are funded in whole or in part by the Investing in Canada Infrastructure Program; or
  • Are:
    • Intended to provide shelter or supports for vulnerable persons or affordable housing; and
    • Being funded in whole or in part by, or are being undertaken by,
      • The Crown in right of Canada or in right of Ontario,
      • An agency of the Crown in right of Canada or in right of Ontario,
      • A municipality,
      • A service manager as defined the Housing Services Act, 2011,
      • A registered charity within the meaning of the Income Tax Act (Canada), or
      • A not-for-profit corporation.

 

Workplace Inspections and Enforcement

As part of the Ministry of Labour, Training and Skills Development’s new “Stay Safe All Day” campaign, the Ontario government announced on January 14, 2021 that it will be engaging in a workplace inspection blitz commencing on January 16, 2021. Approximately 50 workplace health and safety inspectors, as well as local bylaw and police officers, will be visiting big box stores in Toronto, Hamilton, Peel, York and Durham. The blitz will focus on ensuring employees and members of the public are wearing masks, maintaining physical distance, and following all other applicable health and safety measures.

Inspectors have the authority to issue tickets to supervisors, employees and customers for failing to comply with COVID-19 prevention measures, and may even order the temporary closure of the premises. Fines are set at $750 for a failure to follow the rules, and $1,000 for preventing others (e.g., the employees under one’s supervision or one’s colleagues) from following the rules. Maximum fines are $100,000 for individuals and $10 million for corporations. Prosecution and imprisonment are also possible.

For more information, please refer to the Ontario government’s press release.

 

In Our View

It is recommended that all Ontario employers review the new restrictions outlined above, with a view to determining whether, when and how they may remain open, and whether they will require employees to attend at their workplace.

As has been the case throughout the COVID-19 pandemic, regulations are amended and orders issued with little advance notice. Accordingly, should the summary provided in this article conflict with any new or amended provincial regulation or order, that regulation or order will prevail. We will keep readers updated as necessary.

For more information on the impact of the new public health restrictions on your organization, please contact Paul Lalonde at 613-940-2759Sheri Farahani at 613-940-2745Kecia Podetz at 613-940-2752Mélissa Lacroix at 613-940-2741 or Kyle Shimon at 613-563-7660 ext.269.

[*] Though by other Ontario law, they may not open until 9:00 a.m.