New Ontario regulations require COVID-19 screening by employers

La version française de cette communication est publiée ici.

On September 25, the Ontario government amended O. Reg 364/20 (Rules for Areas in Stage 3 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020) (Regulation) in response to the recent rise in COVID-19 cases in Ontario. Among other things, the amendments require businesses and organizations to comply with any advice, recommendations and instructions issued by the Ministry of Health (Ministry) on screening for COVID-19, including the use of a new screening tool for all workers and essential visitors.

What you need to know

  • Effective September 26, 2020, businesses in Ontario are required to comply with any advice, recommendations and instructions issued by the Ministry on screening for COVID-19.
  • The Ministry has, in turn, recommended the use of a screening tool, to be completed by any workers and essential visitors before or when they enter the workplace. As a result of the amendments to the Regulation, the screening tool must now be used by all Ontario businesses, subject to certain exceptions.

Who needs to complete the screening tool?

The Ministry has indicated that the screening tool should be completed by all workers or essential visitors entering the work environment. “Workers” includes all staff, including students, contractors or volunteers that conduct business or related activities. “Essential visitors” includes all individuals providing a service in the establishment who are not employees or patrons of the establishment (i.e., delivery, maintenance and contract workers). The screening tool need not be completed by patrons of an establishment (including clients) or by emergency services or other first responders entering a workplace for emergency purposes.

What questions must be used to screen individuals for COVID-19?

The screening tool recommended by the Ministry asks workers and essential visitors: a) whether they have any new or worsening symptoms or signs of COVID-19 (the signs and symptoms are specifically set out in the screening tool); b) whether they have travelled outside of Canada in the past 14 days; and c) whether they have had close contact with a confirmed or probable case of COVID-19.

The questions on the screening tool are minimum requirements, such that employers may supplement the tool with additional questions.

How to complete the screening tool?

Screening must occur before or when a worker enters the workplace at the beginning of their day or shift, or when an essential visitor arrives.

There is no requirement for the means by which the screening tool must be completed by workers or essential visitors. A screening questionnaire could be sent in advance by e-mail, or be available at reception.

How long should employers keep records?

The Ministry has not set any requirements relating to the retention of COVID-19 screening records. However, in light of privacy concerns, the records should be kept confidential, and retained only for as long as is reasonably necessary for the purpose for which they were collected. We note that the Ministry currently requires bars and restaurants to keep client logs for a period of 30 days (for contact tracing purposes), such that it would likely be reasonable for employers to keep screening records for this time period.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

© 2020 by Torys LLP.
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