The government has declared Ontario’s second emergency state and issued a new stay-at-home order requiring everyone to remain at home, with limited exceptions. As a result, Ontario’s essential and non-essential businesses must have employees work from home until the stay-at-home order is lifted unless their work cannot be performed remotely. The Ontario government’s official news release.

Employers and Employees to Determine Who Can Work from Home

The stay-at-home order does not explain how to assess whether an employee’s work “cannot be performed remotely”. The Ontario government provided the following guidelines:

“Each person responsible for a business or organization that is open shall ensure that any person who performs work for the business or organization conducts their work remotely, with limited exception, for instance, where the nature of their work requires them to be on-site at the workplace.

Beyond this, Ontario’s Second Emergency states that employers and employees should use “best judgment and common sense” to determine whether an employee’s work requires them to be on-site.  This means that employers and employers should consider whether the essential duties of a job can be performed remotely.  This likely includes secretarial work, customer support, data entry, training, research, and other positions requiring tasks that can be done remotely with a computer and/or phone.

In contrast, some employees likely will not be able to perform the essential duties of their job remotely, such as workers who:

• perform logistical work, manual labour, or work on fixed equipment or locations (e.g. warehouse workers, janitorial and security employees, essential construction, food service workers, etc.)
• perform front-line services or sales of essential goods (e.g. veterinarians, workers who process customer transactions in stores, bank and credit union employees, dental hygienists, chiropractors, etc.),
• work with highly confidential or proprietary information or equipment that cannot reasonably be adapted to a home-based work environment (e.g. court services staff, lawyers, laboratory workers, information technology professionals, etc.)

If an employer does not allow an employee to work from home where possible, an employee can file a complaint with the Ministry of Labour, Training and Skills Development and employers could be penalized. An employee complaint may also trigger the Ministry to conduct a workplace investigation into an employer, either in person or virtually.

As a part of Ontario’s Second Emergency, employees may also file a claim with the Workplace Safety and Insurance Board (“WSIB”) if they have reasonable grounds to believe they contracted COVID-19 while working on-site.

New Rules for Businesses that Remain Open During Ontario’s Second Emergency and Stay-at-Home Order:

• Everyone must wear a mask or face-covering in the indoor areas of any business or organization. This includes employees, customers, and anyone else attending the business or organization.
• All businesses remaining open must prepare and make available a COVID-19 safety plan.  A copy of the plan must be made available to any person for review upon request and be posted where it would come to the attention of individuals working in or attending the business.  Employers are not required to send their plan to the government. However, during an inspection of the workplace, an inspector or compliance officer could ask whether the employer has developed a safety plan and may ask to see it.
• Businesses and organizations in the City of Toronto are required to notify Toronto Public Health at 416-338-7600 as soon as they become aware of 2 or more people testing positive for COVID-19 within a 14-day period in the workplace and provide a designated contact person at the workplace to communicate with Toronto Public Health. In addition, contact information for all workers must be available to Toronto Public Health within 24 hours of any request. Additional obligations may apply. More information about the City of Toronto’s requirements for workplaces may be found here: Toronto Public Health Instructions for Workplaces

Most existing COVID-19 workplace rules remain in effect. For example, Ontario workplaces must still screen any workers or essential visitors entering the work environment. Please see the COVID-19 Screening Tool for Workplaces for more information.

Employees May Be Required to Identify Essential Work to Law Enforcement

The Ontario government states that residents will have a duty to identify themselves when a police officer has “reasonable and probable grounds” to suspect that there has been a breach of the stay-at-home order. In our view, if an employee is clearly on their way to a destination (work), it is unlikely that an officer would stop and question them. We anticipate that police questioning will be limited to situations in which an individual is not clearly on their way somewhere, e.g. the employee is waiting around, staying in one place, etc.

The Ontario government is letting employers and employees decide among themselves what constitutes “essential work” that cannot be performed remotely. The government did not create a new, defined list of essential work.  It is up to employers and employees to decide who must attend work. We do not foresee law enforcement second-guessing those decisions when they see residents on their way to work.

However, if an officer questions an employee on the way to work, the employee can explain that their attendance on-site is deemed to be essential. If need be, the employee can provide proof of employment by producing employee identification, a business card, employee badge, etc. Employers may also consider issuing letters of employment to those workers which can be presented to law enforcement in the case of questioning.

Income Support for Employees Unable to Work

The Canada Recovery Sickness Benefit (“CRSB”), administered by the Canada Revenue Agency, provides income support to employed and self-employed individuals who are unable to work because they are sick or need to self-isolate due to COVID-19, or have an underlying health condition that puts them at greater risk of getting COVID-19.  If an employee is eligible for the CRSB, they can receive $500 ($450 after taxes withheld) for a 1-week period.  If their situation continues past 1 week, they will need to apply again.  An employee may apply for up to a total of 2 weeks between September 27, 2020 and September 25, 2021.

The Canada Recovery Caregiving Benefit (“CRCB”), administered by the Canada Revenue Agency, provides income support to employed and self-employed individuals who are unable to work because they must care for their child under 12 years old or a family member who needs supervised care. This applies if their school, regular program or facility is closed or unavailable to them due to COVID-19, or because they are sick, self-isolating, or at risk of serious health complications due to COVID-19. If an employee is eligible for the CRCB, they can receive $500 ($450 after taxes withheld) for a 1-week period. If their situation continues past 1 week, they will need to apply again. An employee may apply for up to a total of 26 weeks between September 27, 2020 and September 25, 2021.

Employers and employees should frequently review Ontario’s requirements and recommendations regarding COVID-19, in addition to any local public health orders, as they may change without notice.

If you have any questions about Ontario’s second emergency and stay-at-home order, please contact us online or call our office at 416-640-2667.