On April 27, 2020, the Ontario government published its framework for Re-opening Ontario after COVID-19 (the "Framework").
The Framework outlines methods and principles the government will adopt over the coming months to safely and efficiently contain the spread of COVID-19, while re-opening businesses, services and public spaces.
Included below are compiled resources that may have application to employers and businesses which have recently re-opened, are planning to re-open in the near future, or whose operations have been ongoing throughout the pandemic.
The Framework
The Framework features a phased approach that has been divided into 3 stages:
Stage 1 (in progress)
- opening select workplaces that can meet current public health guidelines
- allowing essential gatherings of a limited number of people
- opening some outdoor spaces
- continued protections for vulnerable populations
Stage 2
- opening more workplaces with significant mitigation plans
- opening more public spaces
- allowing some larger public gatherings
- continued protections for vulnerable populations
Stage 3
- opening all workplaces responsibly
- relaxing restrictions on public gatherings
- continued protections for vulnerable populations
In a previous article we outlined the province's recent announcement that, effective May 4, 2020, and subject to "strict safety guidelines", the following businesses would be permitted to re-open:
- Garden centres and nurseries with curbside pick-up and delivery only;
- Lawn care and landscaping;
- Additional essential construction projects that include:
- shipping and logistics;
- broadband, telecommunications, and digital infrastructure;
- any other project that supports the improved delivery of goods and services;
- municipal projects;
- colleges and universities;
- child care centres;
- schools; and
- site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
- Automatic and self-serve car washes;
- Auto dealerships, open by appointment only;
- Golf courses may prepare their courses for the upcoming season, but not open to the public; and
- Marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.
On May 6, 2020, the province announced that it would be "easing restrictions" on retail stores and "essential construction" during COVID-19, in accordance with the following timetable and subject to "applicable health and safety guidelines":
- May 8, 2020, at 12:01 a.m. - Garden centres and nurseries will be able to open for in-store payment and purchases;
- May 9, 2020, at 12:01 a.m. - Hardware stores and safety supply stores will be permitted to open for in-store payment and purchases; and
- May 11, 2020, at 12:01 a.m. - Retail stores with a "street entrance" can begin offering curbside pickup and delivery.
The Office of the Premier also confirmed that the province is "expanding essential construction" to allow below-grade multi-unit residential construction projects (such as apartments and condominiums) to begin, and existing above-grade projects to continue.
Based on the province's most recent announcement, eligible retailers preparing for in-store purchases will be expected to operate under the same health and safety guidelines that apply to retailers in the essential services sector (including grocery stores and pharmacies).
Similarly, it is anticipated that businesses seeking to offer curbside pickup and delivery services will be expected to meet strict health and safety guidelines that are comparable to those presently applicable in the essential services sector.
"Strict Safety Guidelines"
The government has published new resources and materials to assist employers with assessing the "strict safety guidelines" they will be required to meet.
The Ministry of Labour, in consultation with four provincial Health and Safety Associations ("HSAs"), has published over 60 technical sector guidance documents to support the safe and efficient re-opening of workplaces:
- Infrastructure Health and Safety Association (IHSA) has published guidelines for the construction, electrical and utilities, aggregates, natural gas, ready-mix concrete and transportation sectors;
- Public Service Health and Safety Association (PSHSA) has published guidelines for hospitals, nursing and retirement homes, residential and community care facilities, universities and colleges, school boards, libraries and museums, municipalities, the provincial government and its agencies, fire / paramedic services and First Nations;
- Workplace Safety North (WSN) has published guidelines for the forestry, mining, smelting, refining, paper, printing and converting sectors; and
- Workplace Safety and Prevention Services (WSPS), has published guidelines for the agriculture, manufacturing and service sectors.
The Ministry of Labour has also released additional "guidance notes" for employers in five key industry sectors:
The Ministry of Labour and the above mentioned HSAs have published sector-specific posters for both employers and employees to promote infectious disease prevention strategies in key industry sectors. Copies of the Ministry's posters, along with additional sector-specific guidelines and information can be downloaded and printed from the Ministry of Labour's website.
Gowling WLG Focus
The following are key takeaways for employers and businesses seeking to comply with the province's most recent directives:
- The Office of the Premier and the Ministry of Labour have indicated that "strict compliance" with the province's new health and safety directives will be required in order for an employer or business to re-open. Proactive employers should, at a minimum:
- Review, develop and implement appropriate training on industry-specific health and safety requirements pursuant to the Framework;
- Post in the workplace any relevant or applicable posters or guidelines that are published by the Ministry of Labour and/or relevant HSAs;
- Conduct periodic reviews and audits of materials and guidelines published by the Ministry of Labour and/or relevant HSAs to ensure ongoing compliance and up-to-date training; and
- Maintain records of any and all COVID-19-specific training provided to employees.
- The above guidelines and publications are not "limited" to businesses that have recently re-opened, or are intending to re-open. The above guidelines and publications will impact businesses that have continued to operate throughout the State of Emergency, either as a result of being deemed essential, or as a result of not having been ordered to close. Those businesses should continue to conduct their operations as they have to date, ensuring ongoing compliance with any relevant or applicable health and safety guidelines developed by the province.
- Employers (whether re-opening or remaining open) remain statutorily obligated to "take every precaution reasonable in the circumstances" for the protection of workers and other individuals at the workplace. Proactive employers should take steps to meet and, whenever possible, exceed the basic protections required by the province in order to safeguard workers, and minimize any risk of non-compliance with health and safety requirements.
- Employers and businesses found to be violating any existing or newly established health and safety requirements may face significant penalties, including fines, compliance orders, stop-work orders, risk of prosecution and/or imprisonment.
- Further announcements relating to Stage 1 of the Framework may be made in coming weeks. At present, no timetables have been set for Stages 2 and 3 of the Framework.
To date, the province has indicated that its strategic response to COVID-19 must necessarily be fluid and adaptable. As exemplified over the past several weeks, the province's directives can rapidly shift in order to ensure that Ontarians are best protected from COVID-19, whether at or outside the workplace.
Accordingly, we urge businesses that have already re-opened, and those whose operations have been ongoing, to proactively ensure that they have taken all reasonable steps to address applicable requirements relating to major sources of employer liability. These would include, at a minimum, ensuring compliance with health and safety protocols, relevant employment standards, applicable human rights protections and employee privacy regulations (particularly with respect to the collection, use and possible disclosure of Personal Health Information).
For those businesses that are planning to re-open in the near future, a considered and proactive approach should be adopted to minimize disruptions and ensure that operations can resume as smoothly as possible.
Should you require any specific assistance regarding the matters discussed herein, please do not hesitate to contact a member of Gowling WLG's Employment, Labour & Equalities Group.