COVID-19 Update: Our Business is Either “Essential” or Not – Now What?

In an effort to further contain the spread of COVID-19, certain provinces, including Ontario and Québec, have ordered the closure of non-essential workplaces (a full, updated summary of emergency measures to date can be found here).

Our Business is Not Essential – Now What?

  • Just because a business is not on a provincial “essential” business list does not necessarily mean that it is required to stop all operations. The provincial closure orders to date have generally required the closure of the physical workplace, but have permitted businesses to continue remote operations, as well as operations conducted through teleworking and e-commerce platforms.
  • In addition, non-essential businesses are also generally permitted temporary access to their premises for the purposes of facilitating critical infrastructure protection. This includes, but is not limited to: IT, security, life safety, etc.
  • In considering the scope of what business operations are permitted, we recommend consulting with legal counsel as there are provincial and industry sector nuances.

What is the Risk if We Do Not Comply?

  • There is significant liability for businesses that are found to be in contravention of the Closure Orders. In Ontario, for example, the penalties for breaching an order made under the Ontario Emergency Management and Civil Protection Act (“EMCPA”) include a corporation being fined up to $10,000,000, while directors and officers may each be fined up to $500,000 and imprisoned for up to one year. In Québec, pursuant to the Public Health Act, the penalties range from $1,000 to $ 6,000 for each offence and these fines are doubled in the case of a repeated offence.

Our Business is Essential and May Stay Open – Now What?

  • The fact that a business is deemed “essential” does not exempt it from its legal obligation to provide for a safe workplace under occupational health and safety legislation. In accordance with this legal obligation and to reduce the risk of exposure to COVID-19 for its workers, employers must generally:
    • identify the risk of exposure;
    • assess the risk; and
    • take every precaution reasonable in the circumstances to protect workers.
  • Practically speaking, businesses who are maintaining operations in their physical workplaces should consider implementing some or all of the following measures:
    • Create a pandemic response team. If this has not yet been done, an employer should immediately identify a team responsible for pandemic planning. The team should include representatives with expertise in human resources, legal, operations (including IT and security), health and safety, and communications.
    • Implementation of necessary travel restrictions. Employers are entitled to implement travel restrictions and even bans (for business travel), particularly where such travel is deemed non-essential. Employers should restrict any non-essential business. While employers cannot ban personal travel, given the circumstances, they may require employees to disclose personal travel information, such as dates and locations of travel (including layovers that may create risk).
    • Create a process for self-reporting. Businesses will want to establish a system for employees to report their status during a pandemic, including what information they are required to communicate to the business; how they are to communicate that information to the business; who that information should be communicated to within the business; and when they are expected to not report to work. Employers should at a minimum be taking steps consistent with the applicable governments’ recommendations. Being prepared means being informed and the following government websites should be checked regularly by businesses in Ontario and Québec:
      • Government of Canada (link)
      • Government of Ontario (link)
      • Government of Québec (link)
      • Public Health Agency of Canada (link)
      • Public Health Ontario (link)
      • Toronto Public Health (link)
      • Santé Québec (link)
      • Santé Montréal (link)
    • Create readiness plans for employees exhibiting symptoms or who have been in direct contact with someone who has symptoms. Businesses should have clear reporting and containment protocols for any employees who have a confirmed case of COVID-19, are exhibiting symptoms of COVID-19, have travelled outside of Canada, or have come into contact with someone who has symptoms. Public Health Ontario’s guideline on how to self-monitor can be found here.
    • Have physical distancing protocols. Businesses should be working to increase the physical distance between others (2 metres or more) as a way to minimize the risk COVID-19 transmission. This may include but is not limited to, reconfiguring physical workplaces, limiting access to common eating areas, or staggering eating periods to allow for an increased social distance between individuals.
    • Adopt flexible work arrangements. Businesses should adopt flexible work arrangements to permit employees that can work from home, to work from home.
    • Provide reminders regarding simple steps to avoid getting sick. Employees should be reminded to wash their hands often with soap and water for at least 20 seconds; avoid touching their eyes, nose and mouth with unwashed hands; and cover their cough or sneeze with a tissue, then throw the tissue away. Businesses may also want to add additional reminders or bulletins around not sharing food, drinks, utensils, etc. Public Health Ontario’s guideline on how to appropriately wash hands can be found here.
    • Sanitization of Workplace. Businesses should review cleaning procedures to ensure the regular disinfection of equipment, workstations and the workplace generally. Businesses should more readily clean and disinfect surfaces and objects that may be contaminated with germs (i.e. handicap or elevator buttons, door handles, and checkout counters).
    • Personal Protective Equipment. Employers should distribute and train employees in the use of personal protective equipment, as appropriate.  Employers should ensure PPE meets Health Canada standards.
    • Engineering controls. These may include ensuring well-maintained heating, ventilation and air conditioning (HVAC) systems with sufficient air changes per hour; point-of-care alcohol-based hand rub dispensers; and dedicated hand wash sinks.
    • Regular updates to staff. A business should be communicating regular updates regarding COVID-19 and the measures that it is taking to address risks to its staff. Regular updates will likely assist with neutralizing some of the hysteria and paranoia that may exist in and around the workplace regarding COVID-19. These communications should be used to remind staff about healthy workplace policies, including reminding workers of the simple steps to avoid getting sick. Moreover, a business should communicate to its staff all of the additional steps that it is taking to minimize the risk of exposure to COVID-19 within its workplaces.
    • Prepare for work refusals.  Finally, employers need to be prepared to deal with work refusals from employees. A discussion of key considerations when dealing with work refusals can be found here.

This update is part of our continuing efforts to keep you informed about COVID-19. Check our COVID-19 hub and our McCarthy Tétrault Employer Advisor blog for further updates, including in-depth analysis of emergency legislation and government orders in the federal and various provincial jurisdictions. If you are an employer and need assistance, please reach out to any member of our National Labour & Employment Team.

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