Effective January 14, Ontario will be under a “stay-at-home” order for at least 28 days (the order).
What you need to know
- Only essential businesses are permitted to remain open, subject to certain new restrictions. However, employees of those businesses are required to work remotely unless the nature of their work requires them to be on-site.
- Essential businesses that remain open continue to be subject to the health and safety obligations previously applicable to essential businesses.
- The order can be found here, and the changes to the rules for essential businesses can be found here (the Essential Business Regulation).
Only essential businesses remain open
Only essential businesses are permitted to remain open while the order is in effect (though non-essential businesses are permitted to operate remotely). The list of essential businesses remains largely unchanged from the previous rules for areas in Stage 1. However, new restrictions have been introduced to some essential businesses, including hours of operation restrictions for certain retail stores, and the number of construction activities or projects that may remain in operation has been curtailed.
Employees of essential businesses required to work remotely
While the order is in effect:
- Individuals are required to remain at home, unless leaving their home is necessary for limited specified purposes. Those purposes encompass working where the nature of the work requires the individual to leave their home, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace; and
- Essential businesses are required to ensure that their employees work remotely, unless the nature of their work requires them to be on-site at the workplace.
Neither the order nor the Essential Business Regulation provide guidance as to what type of work “requires” an employee to be on-site, such that individuals and their employers have discretion to determine whether work can be performed remotely. Although not specifically addressed in the Essential Business Regulation, failure to exercise such discretion appropriately could result in the imposition of fines (discussed in further detail below).
The legislation may require a change in policies for some essential business employers. Many office-based essential businesses have, to date, been permitting employees to attend at the workplace at their discretion (subject to the applicable health and safety protocols). In light of the order and Essential Business Regulation, we recommend that such businesses review and consider changes to their approach. Employees should no longer be permitted to attend at the workplace simply because they would like to. Only employees whose work requires them to attend at the office (i.e., their work cannot be done remotely) should be permitted to do so.
No significant changes to health and safety requirements
Essential businesses that remain open continue to be subject to the health and safety obligations previously applicable to essential businesses in areas in Stage 1, including the requirement to ensure employees wear masks while indoors and practice social distancing. Although there was initial speculation that mask use would be required indoors at all times (even where social distancing was possible), the Essential Business Regulation confirms that employees are not required to wear masks indoors if, among other things, they perform work in an area that is not accessible to the public and are able to maintain a physical distance of at least two metres from others while in the area.
There are set fines for violating the rules or causing others to violate the rules to a maximum of $100,000 for individuals and $10 million for corporations. The Government of Ontario has also indicated that it will be increasing workplace inspections, with a focus on manufacturing, warehousing, distribution centres, food processing and other publicly available essential workplaces. However, these workplace inspections appear geared toward ensuring compliance with health and safety rules (i.e., masking, social distancing, capacity limits, etc.).
It remains to be seen how the requirement to stay at home will be enforced. Among other things, the legislation does not provide for any particular form of proof that employees and/or employers must provide in order to demonstrate their work requires attendance at the office (or that they are out of the house for some other permitted reason).
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.
© 2021 by Torys LLP.
All rights reserved.