This morning, Premier Doug Ford declared a state of emergency in Ontario amid the COVID-19 pandemic, advising that the decision was not made lightly.  As a result of this declaration and its associated orders, the following establishments are required to close immediately:

  • all facilities providing indoor recreational programs;
  • all public libraries;
  • all private schools as defined in the Education Act;
  • all licensed child care centres;
  • all bars and restaurants, except to the extent that such facilities provide takeout food and delivery;
  • all theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies; and
  • concert venues.

Further, all organized public events of over fifty people are also prohibited, including parades and events and communal services within places of worship.  These orders were approved by the Lieutenant Governor in Council (LGC) and will remain in place until March 31, 2020, at which point they will be reassessed and considered for extension, unless this order is terminated earlier.

How Can This Happen?

The Ontario Government has the ability to declare a state of emergency under the Emergency Management and Civil Protection Act (Act).

The definition of "emergency" under the Act includes a disease or other health risk.

What are the criteria for declaring an emergency?

While municipalities may also declare emergencies, the LGC or Premier may declare a state of emergency when there is a matter requiring immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property when one of the following circumstances exist:

  1. the resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay;
  2. the resources referred to in (a) may be insufficiently effective to address the emergency; or
  3. it is not possible, without the risk of serious delay, to ascertain whether the resources referred to in (a) can be relied upon.

This occurred in 2003 when the Premier of Ontario declared a provincial emergency under the Act in response to the outbreak of Severe Acute Respiratory Syndrome (SARS).

How can this affect employers?

During a declared emergency, the LGC may make orders that are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property (subject to Charter considerations), if it is reasonable to believe that the harm or damage will be alleviated by an order, and making an order is a reasonable alternative to other measures that might be taken to address the emergency.  Orders are subject to the requirement that they be as minimally impairing as possible based on prescribed criteria.

The types of emergency orders that can be made are very broad and have the ability to considerably affect employer operations. Some examples include:

  1. regulating or prohibiting travel;
  2. closing any place whether public or private, including any business, office, school, hospital or other establishment or institution;
  3. fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources;
  4. authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide (this will also invoke a job protection for that employee under the Act); and
  5. consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the LGC considers necessary in order to prevent, respond to or alleviate the effects of the emergency.

We have been ordered shut down and I need to lay off my staff. Is that a constructive dismissal?

No.  Under the Employment Standards Act, 2000 (ESA), an employee is entitled to a leave of absence without pay if the employee will not be working because of an emergency declared under the Act and,

  1. because of an order that applies to him or her made under the Act;
  2. because of an order that applies to him or her made under the Health Protection and Promotion Act (HPPA); or
  3. because he or she is needed to provide care or assistance to a prescribed family member (e.g. spouse, parent, child, grandparent, brother or sister, or a relative dependent on the employee for care or assistance).

The entitlement to this leave means the employee's job is protected and they are entitled to reinstatement.  Employees may continue to participate in benefit plans (and the employer must cover its part of benefit contributions) unless the employee elects in writing not to do so.

An employer may request evidence reasonable in the circumstances at a time that is reasonable to ensure the employee is entitled to the leave under (c). 

Generally, and unless an employee is exercising their right to declared emergency leave under (c), an employee's entitlement to declared emergency leave will end when the order under the Act is revoked or the order under the HPPA is no longer in effect (even though an emergency may still be declared). There are circumstances where an order may be extended or additional leave may be granted to deal with the prolonged effects of the emergency.

How long will a state of emergency last?

While there are defined timelines under the Act, the reality is that the emergency can stay in place until the government decides such a declaration is no longer necessary.

Typically, a state of emergency will last for 14 days unless terminated earlier or extended by the LGC for an additional 14 days and then subsequently by the Legislative Assembly for intervals no more than 28 days each. There are other circumstances under which the emergency state can be extended.

How does this interact with an employer's duties under OHSA?

In the event of a conflict between this Act or an order made and the Occupational Health and Safety Act or its regulations, the latter prevails.  This means it is still on the employer to take every precaution to ensure the safety of workers, even where an emergency state is declared.

We are not shut down, but need employees to work longer in response to the COVID-19 pandemic. What should we do?

An employer may in some cases require employees to work beyond the normal limits on hours of work under the ESA, but only so far as is necessary to avoid serious interference with the ordinary working of the employer's establishment or operations:

  1. to deal with an emergency;
  2. if something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services;
  3. if something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted; or
  4. to carry out urgent repair work to the employer's plant or equipment.

While employers can require employees to work in these circumstances, employees that are required to do so are entitled to overtime pay, unless exempt under the ESA.

To learn more about workplace policies on communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.