Ontario Declares Emergency, Issues Stay-at-Home Order

On January 12, 2021, the Ontario government declared a second emergency under the Emergency Management and Civil Protection Act (EMCPA) in light of the surging COVID-19 cases in Ontario. The emergency declaration took effect immediately.

At the same time, the government announced that it would be issuing a range of other orders to enhance the restrictions in place across the province, including a Stay-at-Home Order, and which would take effect on January 14, 2021. The regulations giving effect to these orders have now been published.

The restrictions on businesses that currently exist under the Rules for Areas in Stage 1, a regulation made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (Stage 1 Rules), remain largely in place subject to amendments made by Ontario Regulation 10/21. These amendments also came into effect January 14, 2021, with certain exceptions.

The government has indicated that these measures are anticipated to stay in effect until at least Thursday, February 11, 2021. They apply to all regions in Ontario.

In this FTR Now, we review the new regulations and highlight some of the changes which will be of interest to employers.

Amendments to the Stage 1 Rules

Enhanced Remote Work Requirement

Where businesses or other organizations are permitted to open under the Stage 1 Rules, there is a new default obligation that the workers must perform the work remotely “unless the nature of their work requires them to be on-site at the workplace.”

While many employers already have large numbers of employees working from home, this new obligation will mean that employers will need to reassess who is required or permitted to be in the workplace. Unless it is necessary for an employee to perform their work at the work site, that employee must now work from home.

This new requirement does not apply to the operation or delivery of services by any government or any person or publicly-funded agency or organization that delivers or supports government operations and services (including the healthcare sector).

Notably, the Stay-At-Home Order (discussed later in this update) contains an exception to permit individuals to report to work where the nature of the work requires them to leave their residence, including where an employer has determined that the nature of their work requires them to be in the workplace.

Masking and Distancing

The Stage 1 Rules have a range of masking and distancing rules that are placed on the person responsible for a business or organization that is allowed to open. For example, that person is to ensure that any person in the indoor area of the premises wears a mask or appropriate face covering, subject to a range of exceptions.

The Stage 1 Rules have now been amended to place similar obligations directly onto the individuals themselves. Thus, individuals now have an obligation to wear a mask and to maintain the required physical distancing (subject to limited exceptions) when inside businesses or other premises that are permitted to open.

However, it is also important to note that the same range of exceptions continue to apply to the new masking rules. Key exceptions for employers include where an individual is being accommodated under the Human Rights Code and also where the employees are in an area of the business not accessible to members of the public and can maintain a 2-metre distance from every other person in the indoor area.

Changes to the List of Businesses that may Open

Most businesses that were permitted to open under the Stage 1 Rules continue to be permitted to open during the state of emergency. There are some exceptions, which we note below, and some of the restrictions on businesses have changed. We review some of the key changes here.

Retail

The categories of retail operations that may open has not changed. Rather, the hours of operation for most retail operations and those operations that may only offer curbside pickup or delivery are now limited to 7:00 a.m. to no later than 8:00 p.m.. Goods may not be delivered to patrons outside of those hours.

These restricted hours do not apply to stores that primarily sell food, nor to pharmacies, gas stations, convenience stores, and restaurants for takeout or delivery. The restricted hours also do not apply to discount and big box retailers that are permitted to open.

Pickup of goods may now only take place if the patron ordered the item before arriving at the business premises.

Construction

There are new restrictions regarding what construction projects will be deemed essential. These restrictions are similar to those enacted previously in the Spring, however, the following new categories have been included and will be considered essential construction:

construction projects funded by the Crown in right of Canada or in right of Ontario, an agency of the Crown in right of Canada or in right of Ontario, or a municipality*
construction projects that support the operations of, or provide new capacity in electricity or natural gas generation, transmission distribution and storage, or in the supply of such resources
construction projects that “support the operations of Broadband internet and cellular technologies and services”
construction projects intended to provide affordable housing or shelter/support for vulnerable persons, and which are being funded in whole or in part by prescribed bodies
projects funded by the government, municipalities, registered charities or non profit corporations.

Healthcare and critical infrastructure projects continue to be considered essential, as well as most residential construction projects.

Unlike in the Spring, the list of essential construction projects now specifically identifies that demolition can proceed as an essential construction activity if it relates to a project that is permitted as an essential construction project.

The full list of those construction projects which will be considered essential can be found in section 43 of O. Reg. 10/21.

If a construction project is not considered essential, it must have ceased operations by January 14, at 12:01 a.m..

*Editor’s Note: This section has been updated as result O. Reg 14/21 filed on January 15, 2021.

The analysis regarding whether a specific construction project is considered “essential” can be complicated. If you require assistance in making this determination please contact any member of Hicks Morley’s Construction Law Group.

Services and Entertainment

The following operations must now close:

Concert venues, theatres and cinemas – including drive-in and drive-through events
Golf courses and driving ranges.

Events and gatherings

Most of the basic rules related to the types of permitted events and gatherings have not changed. Thus, for example, indoor organized public events or social gatherings remain prohibited. Similarly, gatherings of up to ten people for the purposes of a wedding, a funeral or a religious service, rite or ceremony remain permitted.

The key change is that the limit capacity for outdoor organized public events or social gatherings is now a maximum of five persons (reduced from ten).

Schools

Schools and private schools in the public health units of Windsor-Essex, Peel Region, Toronto, York and Hamilton will not be permitted to open for in-person learning until February 10, 2021. When they do open, they will be subject to certain conditions, such as operating in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health.

There are general exceptions to this rule. Schools in these health units may open to the extent necessary:

to facilitate the operation of a child care centre or authorized recreational and skill building program within the meaning of the Child Care and Early Years Act, 2014
to facilitate the operation of an extended day program for the provision of emergency child care for the children of prescribed individuals
to allow staff of the school or private school to provide remote teaching, instruction or support to pupils, as long as directives and public health guidelines are followed
to provide in-person instruction to pupils with special education needs who cannot be accommodated through remote learning and who wish to attend a school or their private school for in-person instruction.

For all other regions, the existing rules remain in place. For schools that are currently closed and offering virtual learning, in-person instruction will resume on January 25, 2021. This is subject to certain conditions, such as operating in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health.

The government announced that it will be implementing new requirements for in-person learning, including enhanced masking requirements, enhanced screening protocols and expanded targeted testing.

Childcare

The government also announced that it will be implementing more health and safety measures in childcare settings, including enhanced screening, voluntary participation in targeted testing and additional infection prevention and control measures.

New Stay-at-Home Order

The emergency declaration was accompanied by a new Stay-at-Home Order (O. Reg. 11/21 made under the EMCPA), under which all persons must remain inside their residence and may not leave unless it is necessary for a permitted purpose. The list of permitted purposes for which one may leave their residence is broad. As noted at the outset of this update, individuals may leave their homes to go to work where it must be performed on-site. Individuals are also permitted to leave their homes for other purposes, including:

going to the grocery store or pharmacy
picking up goods through an alternative method of sale, such as curbside pickup
accessing healthcare
going to school
exercising
accessing financial services
responding to or avoiding an imminent risk to the health or safety of an individual.

There are other permitted purposes, and readers should consult the Order for the full list.

Enforcement Measures

As part of the emergency declaration, the government enhanced its ability to enforce the new orders and requirements. To this end, a new regulation made under the EMCPA sets out enforcement measures related to COVID-19. O. Reg. 8/21 permits police officers or provincial offences officers to require an individual to provide the officer with the individual’s correct name, date of birth and address where there is reasonable and probable grounds to believe the person has committed an offence under the applicable provision of the EMCPA. The individual must comply with the request.

Officers may also order the temporary closure of premises where there are reasonable grounds to believe that the number of persons at an organized public event or social gathering exceeds the number authorized under the Stage 1 Rules. Where an event or gathering is unlawful, including at outdoor venues such as parks, the officers may order individuals to disperse and they must comply.

Workplace Inspections

In its news release of January 12, 2021, the government stated that it will be launching workplace inspections in areas of high transmission (e.g. break rooms) and providing educational materials to employers to promote safe employee behaviour. This is part of its “Stay Safe All Day” campaign.

These inspections will focus on workplaces with COVID-19 outbreaks, as well as “manufacturing businesses, warehouses, distribution centres, food processing operations, construction projects and publicly accessible workplaces deemed essential, such as grocery stores.”

On January 14, 2021, the government also announced that as part of its “Stay Safe All Day” campaign, it is launching a workplace inspection blitz of big box retail stores in Toronto, Hamilton, Peel, York and Durham to ensure workers and patrons are complying with the COVID-19 safety requirements in place. This blitz will start on January 16, 2021.

Takeaways for Employers

Employers should carefully review the new rules for their impact on your operations. Outside of very limited exceptions, most employers who have been operating to date may continue to operate. For those employers that must now close again, employees may be entitled to leaves of absence under the Employment Standards Act, 2000, and may be eligible for federal government income support.

The key difference will be the enhanced remote work rules, and employers are encouraged to reassess their operations to ensure that only those workers who must be on-site to perform their work be permitted or required to attend at the workplace. All other employees must now work from home.

Where employees will still be required to report to work, employers should consider issuing letters to the employees confirming that the nature of their work requires them to perform their work at the work site. This type of letter may assist employees if they are stopped by law enforcement while travelling to or from the workplace.

With the enhanced workplace inspections, employers may also want to revisit their masking and distancing practices. Where employers will be relying on the workplace masking exemption, they should take extra precautions to ensure that employees are maintaining the required distancing and to respond appropriately if employees are breaking the rules.

Employers must also be mindful that different regions may be subject to additional health and safety obligations issued by local public health officers or through municipal by-laws.

We anticipate that the government will continue to monitor the impact of these new requirements, and may impose further restrictions if the new ones are not adequately reducing the spread of COVID-19. We will continue to monitor all developments that impact employers and their workplaces.

For more information on the declaration of emergency, these new rules and how they impact your operation, please contact your regular Hicks Morley lawyer.

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. ©

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