Posted May 29, 2020
The Province of Ontario is in the process of reopening even as COVID-19 continues its spread in the community. The continued threat to health and safety of staff, clients and people supported, family members and the public raises critical questions for employers about if, when and how to go about resuming operations. In this blog post we discuss Ontario’s reopening plan and several important considerations for employers.
The Provincial Plan
The Province of Ontario’s current reopening plan has three stages, the first of which started on May 19th, 2020. This plan involves the incremental opening of the provincial economy after three months of mandatory closures. Each stage represents the opening of a greater range of businesses than before. The expected time between each stage is 2 to 4 weeks, though this number will be varied if public health considerations require it.
The first stage involved the opening of a wide range of businesses that had previously been closed. This includes certain outdoor amenities that are low risk, low-risk sporting centres and services (like golf or stables), retail services other than shopping malls (with physical distancing measures), pet and animal services, indoor and outdoor household services (e.g. housekeepers, cooks, cleaning, and maintenance), the full resumption of construction, and so on. A full list of the businesses can be found at the following link.
The full range of businesses that will reopen in stage 2 is not known yet. However, it may include service industries, additional office and retail spaces, and full child care services. The full list will likely be announced just before stage 2 (similar to stage 1) takes place on Ontario’s Newsroom. Public schools will not reopen until the Fall. At present, stage 2 has been delayed until at least June 9, 2020.
The last stage will involve the reopening of all Ontario businesses with appropriate precautions.
During the reopening process, it is expected that many of the emergency orders that are currently in place will continue to apply, in particular those that involve the protection of “vulnerable populations”. A list of these orders can be found on the Province’s emergency information website.
Continued expansion of testing is one of the tools the Province is using to control the spread of COVID-19 during reopening. Up until May 29, the Province limited testing to symptomatic persons and front-line essential services. However, a new enhanced testing regime has since been announced.
This new enhanced testing regime will involve three avenues for testing:
- Assessment Centre Testing – Asymptomatic persons concerned about exposure can now obtain testing at these centres, in addition to the prior testing of symptomatic persons.
- Targeted Campaigns – The Province will now seek to detect and contain COVID-19 by the testing of asymptomatic persons in vulnerable populations (like long-term care homes and shelters) and in priority sectors where physical distancing may be difficult.
- Outbreak Management – The Province continue testing in response to outbreak scenarios in neighbourhoods, hospitals, institutions, and workplaces.
The Premier has promised than anyone who wants a test can get a test. It remains to be seen whether this promise can be fulfilled. Up until the present, the Province has had a testing target of 16,000 tests a day. In the past 2 days, they exceeded this target. However, in the prior ten days, they missed it every day (sometimes by a substantial amount). Hopefully, testing capacity and administration will continue to develop to meet the need.
The formal testing guidance documents issued by the Ministry of Health and Long-Term Care can be found at the following two links:
- COVID-19 Provincial Testing Guidance Update
- COVID-19 Quick Reference Public Health Guidance on Testing and Clearance
Return to Work Planning
It is critical that employers who have remained closed during COVID-19 plan their reopening in the safest possible manner. The remainder of this Blog Post discusses some key considerations for employers in making those plans.
These recommendations are crucial to meet the requirements of the Occupational Health and Safety Act (OHSA), as well as to ensure the safety of staff, people supported and the community. Finally, it will ensure that reopening is not immediately hampered by uncontrolled outbreaks.
Be Aware of OHSA obligations
Employers in Ontario are subject to requirements under OHSA to take all reasonable precautions to keep their employees safe. OHSA also creates an internal responsibility system that ensures all persons in the workplace have a role in responding to hazards. Other more specific duties are also prescribed. Employers should study their obligations under OHSA and be aware of what their general duties are. These duties will help to frame what safety measures they must be taking in the workplace. The Province provides a useful and user-friendly guide to OHSA that employers should study. Alternatively, employers can seek legal advice to ensure their compliance with the law.
Be Aware of Reporting Obligations in the Event of an Outbreak
Employers should be aware of who they should report to if they have an outbreak.
Many employers in the Developmental Services Sector are required to report to local public health immediately if they develop a confirmed or suspected outbreak. Employers can determine if they are required to do so by reviewing the Health Protection & Promotion Act, but it is a good idea in general to immediately contact public health in the case of a suspected or confirmed case in the workplace.
Employers must also give written notice to the Ministry of Labour within 4 days in the event of a workplace illness like COVID-19.
Finally, if an employer is covered by the Workplace Safety & Insurance Board (WSIB) insurance plan, they must report to the WSIB within 72 hours using Form 7 if an employee has suspected or confirmed COVID-19 that may have been acquired in the workplace.
Implement Sector-Specific Guidance & Public Health Recommendations
In response to the ongoing COVID-19 pandemic and the prospect of Provincial reopening, public health authorities have issued many sector-specific guidance documents to help employers take precautions to protect employees and persons supported from COVID-19.
While these guidance documents are not themselves binding in most cases, they recommend the best general public health advice and (where feasible to implement) will very likely represent the minimum “reasonable measures” an employer must take to protect their employee.
A full list of health guidance documents from the Ministry of Health and Long-Term Care can be found here. A full list of over 90 Provincially endorsed sector-specific occupational health and safety guidance can be found here.
Determine Where to Obtain Necessary PPE and Training
While Personal Protective Equipment (PPE) like gloves, masks, gowns, etc. is not required in every situation, many public health guidance documents will recommend it where close physical contact with other people cannot be avoided. It is important then for employers to consider where they will obtain PPE, how they will train their employees in its use, and how they will enforce its proper use.
The Province of Ontario has created a PPE supplier directory online that helps connect employers with needed PPE. This resource should be invaluable in helping employers to find the PPE they need. However, all reliable sources should be explored to ensure that employees have the proper protection.
As for training, Public Health Ontario has invaluable resources for the proper use of PPE. For example, they provide a guidance document linking to different posters and videos used to train health care workers on the proper use of PPE. However, it may be wise to develop training courses for employees with expert consultation to ensure all methods are properly learned. At the end of the day, e-learning can only go so far.
Finally, employers must take steps to ensure that employees properly use PPE. Unless an employee has a human rights basis to refuse to wear appropriate PPE (in which case, the issue must be dealt with through the human rights accommodation process), continued refusal to use proper PPE or the continued improper use of PPE can be subject to discipline. Employers should consider using their disciplinary powers where appropriate to stop repeated misuse of PPE and to ensure that proper workplace practices are followed and as part of their duty to take all reasonable steps to ensure a safe workplace.
Considering Continuing Work from Home
Reopening does not necessarily mean that every employee must return to the workplace. Employers should consider whether any part of their operation can continue to effectively operate from home until the risk subsides. Work from home makes those who remain in the workplace safer by facilitating physical distancing. It prevents infection of the entire workforce if someone gets sick.
However, there are also risks that will have to be managed. The best way to do this (and to set expectations) is to adopt a work from home policy. This should address:
- Expectation of availability;
- Whether any dress code is enforced during working hours (for video conferencing)
- How expenses incurred by the employee will be reimbursed (such as increased data usage);
- What office set up the employee is required to have;
- How long will work from home arrangements last;
- How will confidential information be maintained;
- How will management of the employee occur remotely; and
- How occupational health and safety will be maintained (OHSA may continue to apply in the home) within the reasonable power of the employer.
Be aware, if employees are covered by WSIB, they will likely be insured for any injuries in the home associated with their work.
There are a number of considerations for how to recall employees. These can be divided into two main issues, discussed below.
How to Recall Employees
How recall must be conducted will generally depend on whether an employer is unionized or not. In a unionized environment, recall is often governed in specific terms by the collective agreement. This sort of regulation is much rarer in a non-union employment contract. In either case, the employer should study their legal documents and ensure they follow any agreed to procedure. In a union environment, the employer should also consult with the union.
However, absent those constraints, there are general best practices an employer should follow.
The main consideration is to ensure that recall is not discriminatory (and in violation of the Human Rights Code). Recall practices that appear arbitrary may lead some employees to claim that they are being left out of recall because of a protected characteristic (like race or gender). To reduce this risk, develop a neutral scheme for determining who will be recalled. An employer might evaluate their business’ essential functions on reopening, and then recall employees based on their skills and seniority, for example. The key is to have an objective, non-discriminatory basis for the recall choices that are made. Employers should also ensure to have frequent communication with employees so they are aware of the reasons for these decisions. Keeping employees in the dark may lead them to suspect a prohibited motive.
Employers should also recall employees using written letters with a set recall date with a reasonable date of return (a week is generally reasonable). While this is not legally required in Ontario, providing recall details in writing will make it clear to the employee what the expectations are (and prevent potential misunderstandings) and will protect the employer in the event that the employee claims that they were not given notice.
How to Deal with Employees Who Refuse to Return
Employers are likely to see some employees who reduce to return to work when given recall notice.
The first step in this scenario should be to ensure the employee received the notice, and then to gather information on why the employee does not want to come to work.
If an employer cannot establish contact with an employee, they should make clear, consistent, and reasonable efforts to reach them (for example, send a letter when they miss their recall deadline, call their number, etc.). The key is to build a record of reasonable efforts to contact the employee. Make clear as the situation escalates that continued absence from work will put their employment at risk of being deemed abandoned (but do not start with this warning on the first notice of recall – that warning should only be used as the problem evolves). These efforts will reduce an employer’s risk if the employee turns up months later and claims the right to reinstatement.
Once contact is established, employers should then attempt to determine why the employee is refusing to return to work. This is because certain reasons are legally protected, and an employee will not be subject to discipline or termination if they remain away for those reasons.
If the employee cites a reason related to a medical vulnerability that they or a family member they care for or live with have, employers will likely have to go through the accommodation process with the employee. That may lead to an unpaid leave of absence where the employee’s risks cannot be accommodated in the workplace.
Alternatively, an employee may seek to take an ESA protected infectious disease leaves. These new leaves allow an employee to take an unpaid leave due to certain COVID-19 related reasons (such as a public health order or recommendation to self-isolate, or the need to care for a family member). In those circumstances, an employer can ask for reasonable evidence to verify the leave (for example, proof they live with the family member they care for), but they cannot ask for medical documentation.
If an employee is refusing to work for a specific health and safety reason in the workplace (such as concerns over the provision of improper PPE), the employer will likely have to go through the OHSA work refusal process. This process can be explored here in the Ontario OHSA guide. Employees cannot be punished for engaging in this process.
Finally, if the employee has no good legal reason for refusing to return to work, employers can insist on their return and impose discipline if they refuse. As a side note, it is unlikely that a general fear of COVID-19 that cannot be tied to a specific fear in the workplace will be considered a good legal reason absent a preexisting medical vulnerability in the employee or someone they care for.
There are many other considerations to take into account as you plan for your re-opening. We strongly encourage all employers to start planning today.
PooranLaw will continue to monitor legal developments related to reopening. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.