Ontario’s Announcement about Closure of Non-Essential Businesses: Questions and Answers for Employers


Ontario’s Announcement about Closure of Non-Essential Businesses: Questions and Answers for Employers

Date: March 23, 2020

On March 23, 2020 Premier Doug Ford announced that effective 11:59 p.m. on Tuesday, March 24, all non-essential businesses will be ordered to close for 14 days, and possibly longer. This order is made further to the emergency declared on March 17, 2020 under the Emergency Management and Civil Protection Act. Here is what employers need to consider now.

Who will be affected by this Order?

The provincial government has not yet defined what is meant by “essential” and “non-essential” businesses. A full list of businesses which will be permitted to remain open, as well as the text of the Order in Council mandating this closure, will be released tomorrow. The Premier has confirmed that access to groceries, medicine and essential products will remain in place. [Editor’s Note: After this FTR Now was published, the full list of essential workplaces was released by the government on March 23 at 8:00 p.m.]

Can businesses continue to operate remotely?

According to its news release, the government stated that those businesses that can continue operations with employees working remotely, or through other contingency measures, are being given approximately 36 hours (i.e. likely only until midnight tomorrow) to prepare and adapt. Therefore employers need to immediately determine which positions can work remotely and whether arrangements can be made for them to do so in the time remaining.

Please see our FTR Now dated March 16, 2020 for a discussion of the privacy concerns that can arise with these work from home arrangements.

What happens to those employees who cannot work from home?

Employees who cannot work from home are entitled to a Declared Emergency Leave (DEL) under the Employment Standards Act, 2000 (ESA). A DEL is an unpaid, job-protected leave of absence. It generally ends the day the declared emergency is terminated or disallowed. The employee’s right to the leave will usually end at the same time. Please see our FTR Now publications dated March 17, 2020 and March 19, 2020 for a more detailed discussion of DELs.

Employees who are on a DEL are entitled to benefits continuation during the leave, provided the employee continues to pay their portion of the premiums. Employer communications placing employees on a DEL should ask employees to confirm in writing if they would like to continue their benefits coverage by continuing to pay their portion of the premiums. In the circumstances, employers may wish to consider using electronic means to confirm the employee’s decision.

A Record of Employment will need to be issued in order to allow employees to apply for EI benefits.

What about employees who are about to be laid off or who are already on layoff?

Employers who are impacted by the Order should proceed carefully with respect to employees who were previously laid off or are about to be laid off. This new Order will mean those employees also have an entitlement to a DEL. Given the complexity of this issue, legal advice should be sought before taking any steps with respect to these employees.

Next Steps for Employers

All employers will need to review the Order and accompanying list of businesses to determine whether they will be required to close. Given the uncertainty as to who exactly that may be, all employers should immediately identify those positions that can work remotely to ensure you are prepared to close.

Communications should be prepared to advise those employees who cannot work remotely that they are being placed on a DEL. Finally, Records of Employment will need to issued for all employees placed on a DEL.

We will provide a further update once the Order in Council and list of essential businesses that are permitted to continue operation is published.

Please contact your regular Hicks Morley lawyer should you require further information.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©