COVID-19 Employment Update
September 2020 Charity & NFP Law Update
Published on September 30, 2020

By Barry W. Kwasniewski

Ontario Stage 3 Regulations Require Compliance with COVID-19 Screening Recommendations

As of September 26, 2020, employers responsible for a workplace that is open for business are required to comply with COVID-19 screening practices as advised, recommended, or instructed by the Office of the Chief Medical Officer of Health.  Ontario’s executive council filed Ontario Regulation 530/20 on Sept. 25, an amending regulation to O Reg 364/20, Rules for Areas in Stage 3, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“the Regulation”), which initially came into force on July 24. The government stated its aim “to tighten public health measures in response to the recent rise in cases of COVID-19.” The Regulation mandates “[t]he person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health on screening individuals.”

At the same time, the Ontario Ministry of Health published a “COVID-19 Screening Tool for Workplaces (Businesses and Organizations)” online on September 25, 2020, that includes a questionnaire (“the Screening Tool”). The Screening Tool contains the Ministry of Health’s recommendations and instructions for screening before entering the workplace. Three questions must be asked:

  1. “Do you have any of the following new or worsening symptoms or signs?” Eight lines describing possible symptoms of the COVID-19 illness are listed, each with a checkbox for “Yes” or “No.”
  2. “Have you travelled outside of Canada in the past 14 days?”
  3. “Have you had close contact with a confirmed or probable case of COVID-19?”

These questions are stated as a “minimum” compliance with the Screening Tool, and are to be asked of all workers when entering the workplace at the start of their shift, as well as all “essential visitors” when they arrive; however, the Screening Tool may be “adapted based on need and the specific setting.” The Screening Tool describes “workers” as all staff, including “students, contractors or volunteers that conduct business or related activities where applicable and appropriate.” Further, “essential visitors” are described as “individuals providing a service in the establishment who are not employees or patrons of the establishment (e.g., delivery, maintenance, contract workers).” If any worker or essential visitor answers “Yes” to any question, they should not enter the workplace, but “should go home to self-isolate immediately and contact their health care provider or Telehealth Ontario (1 866-797-0000) to find out if they need a COVID-19 test.” An exception is made for “essential workers who travel outside [of] Canada for work purposes” if they only answer “Yes” to the question for travelling outside Canada.

Ontario Government Extends IDEL Relief Until January 2, 2021

The provincial executive branch filed Ontario Regulation 492/20 on September 3, 2020, extending the “COVID-19 Period” for infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (“ESA”) until January 2, 2021. The new regulation amends O Reg 228/20, Infectious Disease Emergency Leave, which declared the COVID-19 Period for the IDEL provision of the ESA under Section 50.1. IDEL provides unpaid, job-protected leave of absence for non-unionized employees temporarily laid off due to an infectious disease emergency, such as the current coronavirus pandemic, to be determined by regulation. This gives employers relief, at least for a few more months, from potentially expensive termination and severance payments, which could be triggered by the reduction in work hours as a constructive dismissal.

In Ontarian and Canadian law, a constructive dismissal occurs when the terms and conditions of employment are substantially altered, and is treated by the courts effectively as a legal repudiation of the employment contract without cause — allowing employees to claim wrongful dismissal. The COVID-19 Period initially was to last from March 1, 2020 until “six weeks after the day that the emergency declared by Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act is terminated or disallowed.” That emergency declaration terminated on July 24, 2020, when the Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force, leaving the IDEL clock running for at least six more weeks until September 4, 2020.

In its announcement of the extension of IDEL into early in the new year, the Ontario government stated its intention to “protect jobs and businesses by extending protection to prevent temporary layoffs from automatically becoming permanent job losses.” IDEL law was introduced by an amendment to the ESA — the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 — that came into force earlier this year on March 19. See our August 2020 Charity & NFP Law Update for more information on the potential impact of IDEL for employers in charities and not-for-profits.

Read the September 2020 Charity & NFP Law Update