The government of Ontario has declared a second provincial emergency, and has introduced enhanced public health and enforcement measures as well as an accompanying stay-at-home order. These measures are in addition to the current province wide shutdown, which came into effect over 2 weeks ago and runs until at least January 23rd.
Second Provincial Emergency
This second provincial emergency declaration, made under s. 7.0.1(1) of the Emergency Management and Civil Protection Act (“EMCPA”), automatically terminates in 14 days unless terminated earlier or extended for an additional 14 days.
The declaration allows the provincial government to issue new emergency orders under the EMCPA, such as regulating or prohibiting travel, closing businesses and other public or private spaces, as well as the stay-at-home order, discussed below.
Orders will also continue under the Reopening Ontario (A Flexible Response to COVID-19) Act (“ROA”).
Under the new stay-at-home order, every individual must “remain in their place of residence at all times unless leaving their place of residence is necessary” for one or more purposes outlined in the order. The term “necessary” is not defined, and the Premier has said that it is a matter of individual judgement.
Most notably for employers, one of the prescribed exceptions to the requirement to stay at home is “[w]orking or volunteering where the nature of the work or volunteering requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.”
We strongly recommend that employees whose attendance is required at the workplace be given letters from their employer that state this, and that can be provided if the employee is stopped and asked questions about why they are not at home. Given the emphasis on increased enforcement (see below), both employers and employees should be prepared for this to occur.
Other notable exceptions to the requirement to stay at home include:
- attending, obtaining or providing child care;
- obtaining food, beverages and personal care items, including by curbside pickup;
- obtaining services from a financial institution;
- attending a place as required by law or in relation to the administration of justice;
- providing or receiving necessary care or other support or assistance to or from another individual;
- exercising; including walking outdoors, as well as walking or otherwise exercising an animal; and
- if the individual lives alone, gathering with the members of a single household.
Additional Public Health Measures
The provincial government has also introduced additional public health measures. Pursuant to the Regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, persons responsible for a business or organization that remains open must operate the business/organization in compliance with the advice, recommendations and instructions of public health officials, thereby making these public health measures effectively mandatory. These measures include:
- employers must ensure that any employee capable of working remotely does so, the only exception being employees whose work requires them to be on-site at the workplace;
- outdoor organized public gatherings and social gatherings are further restricted to a limit of five people (with limited exceptions);
- individuals are required to wear a mask or face covering in the indoor areas of businesses or organizations that are open;
- wearing a mask or face covering is now recommended outdoors when you cannot physically distance more than two metres; and
- non-essential construction is further restricted, including below-grade construction, exempting survey.
These additional public health measures are anticipated to be in place until at least Thursday, February 11, 2021.
As was the case during the prior closure order last year, a non-essential business may still operate online, by telephone, by mail/delivery, and is not precluded from operating if its employees can work remotely. Pursuant to the recently amended Schedule 2 of O. Reg. 82/20, however, all non-essential retail stores, including hardware stores, alcohol retailers, and those offering curbside pickup or delivery, must open no earlier than 7 a.m. and close no later than 8 p.m.
The restricted hours of operation do not apply to stores that primarily sell food, pharmacies, gas stations, convenience stores, and restaurants for takeout or delivery. Businesses are also not precluded from operation or the delivery of services of any publicly funded agency or organization that delivers or supports government operations and services, including operations and services of the healthcare sector.
For complete lists of businesses and operations that must close and that may remain open subject to limitations, please consult Schedules 2 and 3 of the O. Reg. 82/20 and the government’s informational package.
As a result of the shutdown, if you have employees who are in your non-essential business and who cannot work remotely, then they are entitled to take an Infectious Disease Emergency Leave or a Declared Emergency Leave (discussed below). This right should delay the taking of any other steps with respect to their employment, such as laying off or terminating.
Enhanced Enforcement Measures
The province is authorizing all “provincial offences officers”, including the Ontario Provincial Police, local police forces, bylaw officers, and provincial workplace inspectors, to help enforce the stay‑at‑home order and additional public health measures.
These officers will be able to:
require an individual reasonably suspected of non-compliance with the EMCPA to provide basic identifying information;
order premises to close temporarily if reasonably suspected of hosting a prohibited public event or gathering; and
order individuals attending a prohibited public event or gathering to cease and disperse (regardless of whether any premise has been closed or remains open).
These powers are in addition to officers’ ability to issue monetary fines to individuals and businesses for failing to comply with public health measures required under existing and future emergency orders under both the EMCPA and the ROA.
In addition, the Ministry of Labour, Training and Skills Development is taking additional steps to ensure workplace safety with the launch of the “Stay Safe All Day” campaign. Inspectors from the Ministry will be inspecting workplaces to ensure compliance with all safety requirements, and will be focusing on break rooms, lunch rooms and other areas in which there may be a relaxing of protocols.
The provincial government recently extended the availability and duration of the Infectious Disease Emergency Leave (“IDEL”) and related relief from the layoff and termination provisions under the Employment Standards Act, 2000 (“ESA”) until at least July 3, 2021. Unlike the IDEL, employees’ entitlements to take a Declared Emergency Leave (“DEL”) ended with the expiry of the first emergency declaration on July 25, 2020.
With the second emergency declaration, however, employees are again entitled to a DEL if they cannot perform the duties of their position because:
- an emergency has been declared under the EMCPA; and either:
– an emergency order is made under the EMCPA or under the Health Protection and Promotion Act that prevents the employee from performing the duties of their position; or
– the employee must care for an ill family member and so cannot perform the duties of their position.
The DEL ends when the employee can resume the duties of their position, or when the declaration of emergency has been lifted. The employer can require the employee to provide evidence “reasonable in the circumstances” to support the request for leave but cannot require a note from a health practitioner. Only employees who cannot work as a result of the emergency order are entitled to the leave. Those who are able to work remotely can continue to work and as a result are not entitled to the leave.
Both the DEL and the IDEL are unpaid leaves under the ESA. Benefits are available to replace lost income, including Employment Insurance, the Canada Recovery Benefit ($500 per week for up to 26 weeks for employees who have stopped working or had their income reduced by at least 50% due to COVID-19 and who are not eligible for Employment Insurance), the Canada Recovery Sickness Benefit (employee has contracted COVID-19, is self-isolating, is at high risk) and the Canada Recovery Caregiving Benefit (childcare responsibilities, sick family member). Employers are required to reinstate the employee at the end of the DEL or IDEL to the position they held immediately prior to the leave if it still exists or to a comparable position if it does not. Employees on a DEL or IDEL are also entitled to continue participating in certain specified benefit plans unless the employee elects in writing not to do so. Finally, employees on a DEL or IDEL continue to accrue service time for the purposes of determining any rights or entitlements that are tied to length of employment or seniority.
Practically speaking, the reintroduction of the DEL may not impact employers to any material degree given that the IDEL should cover most circumstances in which employees are put on leave due to the COVID-19 pandemic.
As a final note, do not forget that other leaves in the ESA may also be applicable, including family medical leave, family caregiver leave, critical illness leave, child death leave, sick leave, family responsibility leave and bereavement leave.
Please do not hesitate to reach out to us with any questions on this matter.
The Labour & Employment Team at Cunningham Swan.