In light of the increasing COVID-19 cases in the province, on January 12, 2021, the Ontario government declared a second state of emergency under the Emergency and Civil Protection Act. At that time, the government announced that it would issue a range of other orders to enhance the restrictions in place in the province. Effective 12:01 a.m. on January 14, 2021, a Stay-at-Home order (the “Order”) came into effect in Ontario. The Ontario government released the Order and Regulation 10/21 (the “Regulation”) amending the existing rules in Stage 1 of Ontario’s reopening plan only hours before the Order became effective. The Order is anticipated to stay in effect for at least 28 days, until at least February 11, 2021.
The Order provides that all individuals in Ontario must remain in their place of residence at all times unless they leave for any one of the 29 prescribed essential purposes. One of those prescribed purposes is attending work, if the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.
The Regulation further addresses the requirement for individuals to work from home. Section 2.1(1) of the Regulation states that, as a new default obligation, an employer must ensure that employees work remotely, unless the nature of their work requires them to work on-site at the workplace. Thus, it is clearly the employer’s obligation to determine and justify an employee’s attendance in the workplace as necessary to the operation of the business.
Many businesses that were permitted to open under the Stage 1 Rules will continue to be permitted to open during the state of emergency, provided that safety protocols and other restrictions are being followed. Employers should be aware that an employee, who believes that he or she should be working from home while the Order is in place, is entitled to contact the Ministry of Labour to file a health and safety complaint. Disputes may arise as to whether employers can provide their employees with the necessary equipment or other resources, such as computers, cell phones, hardware or internet/Wi-Fi connectivity, to effectively function remotely. Of course, many employers have already carefully assessed the prospects and logistics of employees working from home. They have already made, where possible, arrangements to allow employees to work remotely and effectively. Unfortunately, some employers will now be faced with further financial hardship if they are required to pay for the costs of providing the resources and tools of work to allow employees to work remotely, especially if it is only for a short-term period. It is unclear whether such employers will be considered in breach of the Order if they will incur undue hardship. They may need to consider temporarily closing operations and providing employees with leaves of absence under the Employment Standards Act, 2000. Those employees may be eligible for income support payments from the federal government.
It may be prudent for employers to provide those employees who continue to attend at the workplace with a letter which confirms that they are required to attend at the workplace due to the nature of their work. It may also be advisable for the contact information of the employer’s management or human resources to be set out in such a letter. This type of correspondence may assist those individuals if they are questioned by any police officers, bylaw enforcement officers or workplace inspectors about their reason for being outside their place of residence during the duration of the Order.
Employers in industries with reported COVID-19 outbreaks need to be prepared to be subject to workplace inspections. The government has indicated that it will particularly focus inspections on workplaces such as manufacturing, warehousing, distribution centres, food processing operations, construction projects and publicly accessible workplaces deemed essential, such as grocery stores.