Updated: July 30, 2020
Ontario Employers are responsible for protecting the health and safety of employees at work. They are required to take all reasonable measures to ensure employees are not exposed to the COVID-19 virus.
What duties does an employer have (COVID-19)?
The Occupational Health and Safety Act (“OHSA”) has specific duties for employers in regard to infectious diseases, but generally, the OHSA requires an employer to:
- Take all reasonable precautions to protect the health and safety of workers;
- Ensure that equipment, materials and protective equipment are available and maintained in good condition; and
- Provide information, instruction and supervision to protect worker health and safety.
As part of the above-noted general OHSA duties in Ontario, an employer must be diligent, and investigate the risks of COVID-19 spreading in the workplace. Accordingly, while there is a COVID-19 risk in Ontario, employers must:
- identify the coronavirus risk for their workplace
- assess the coronavirus risk for their workplace, and
- implement proper controls, procedures and safety equipment.
In line with the above advice, public health statements, the government of Canada and our law firm advise Ontario employers to do the following to promote a safe workplace in light of coronavirus:
- Increase awareness about COVID-19 through communication with staff.
- Require employees to stay home when ill.
- If an employee develops COVID-19, the employee should immediately be sent home.
- Evaluate the workplace for areas where people have frequent contact with each other and shared objects.
- Increase the distance between desks and workstations as well as employees and customers (ideally 2 metres). Consider a physical barrier.
- Encourage frequent hand hygiene, sneeze and cough etiquette.
- Ensure frequent cleaning, with particular attention to high-touch surfaces.
- Provide access to hand washing areas and place hand sanitizing dispensers in prominent locations throughout the workplace, if possible.
- Where feasible, adjust policies to reduce social contact, such as:
- flexible hours
- staggering start times
- teleworking arrangements
- Do not require sick notes.
- Avoid business travel.
COVID-19 Workplace Health and Safety Frequently Asked Questions (FAQ)
As part of an employer’s duty to take all reasonable measures to protect employee health and safety, an employer may take relatively extreme measures, discussed below:
01. Can an employer ask employees if they have COVID-19 symptoms?
In these circumstances, yes, an Ontario employer can require employees to report any COVID-19 like symptoms. A list of COVID-19 symptoms are noted here.
Employers have a right to collect, use and disclose private information in order to take reasonable precautions to maintain a safe workplace. Nevertheless, the right to collect, use and disclose private information in this pandemic is not absolute. Employers must take reasonable precautions not to disclose specific and sensitive details regarding an employee’s diagnosis, sick leave or work from home plans unless it is reasonably necessary to do so.
Employers are strongly urged to consider what exact information they need from their workers in order to promote a safe and healthy workplace, and how they can achieve a safe and healthy workplace in a minimally intrusive way as possible.
Accordingly, in these circumstances, employers may ask for and collect private information from employees like travel history, symptoms, diagnoses, risk level and treatment, but they must do so in a manner that is not overly insensitive and intrusive.
02. Must an employer tell other workers about a sick employee?
Employers have a duty to notify their employees that an employee or multiple employees have tested positive for COVID-19. However, employers must take every reasonable precaution not to disclose information that could identify a person and their specific symptoms and diagnosis unless it is reasonably necessary in the circumstances. Generally, all that needs to be said is that an employee tested positive for coronavirus, where he or she worked and came into contact, and that necessary precautions are being taken to stop the spread in the workplace. However, workers that obviously came into contact with a high-risk person should be notified of more specific details.
03. Can an employer take an employee’s temperature?
In Ontario, temperature testing will very likely be considered permissible despite privacy and human rights reasons because it is a bona fide occupational requirement at this point in the pandemic.
The law is, of course, not yet settled on the issue of temperature checks on employees, but I would argue that the practice has become so widespread and encouraged, and, in hindsight, reasonable, that a court will consider it lawful to temperature check employees.
It makes the most sense to follow these instructions to temperature test employees:
- The employer should use a forehead temperature gun;
- Testers should wear and use all appropriate PPE;
- Anyone can take employees temperature Ontario — they just need to be trained on Covid safety, PPE use, privacy protections, employer policies and the instructions that come with the temperature gun;
- Testers should ask for consent and refuse entry to all employees who refuse;
- The employer should refuse employees for 14 days who test above 100.4˚F;
- The employer should not record the temperature data for employees who are tested.
04. What happens if an employee says they are sick?
Sick employees or employees with COVID-19 symptoms should be sent home immediately and not be permitted to return to the workplace until a medical practitioner permits them to return.
March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.
05. What happens if an employee came into contract with someone who is sick?
Employees who came into contract with someone who is sick with coronavirus should be removed from the workplace. Affected employees may take job-protected Infectious Disease Emergency Leave and apply for EI sickness benefits.
06. What if employees refuse to work because of concern about COVID-19 in the workplace?
Employees in Ontario have a right to refuse to work if they genuinely believe that conditions are unsafe for them or their coworkers.
The OHSA has a work refusal procedure that must be followed by employers. Where attending at the workplace is “likely to endanger” the spread of coronavirus, then the employee will be permitted to stay away from the workplace until the situation is resolved without fear of termination of discipline.
Procedure for a COVID-19 Work Refusal
COVID-19 Work Refusal: First Stage
- Worker considers work unsafe.
- Worker reports refusal to his/her supervisor or employer. Worker may also wish to advise the worker safety representative and/or management representative. Worker stays in safe place (like home).
- Employer or supervisor investigates.
- Safety Issue resolved. Worker goes back to work.
- Safety Issue not resolved: Worker is permitted to refuse work by employer.
- Safety Issue not resolved and parties do not agree. Proceed to the second stage
COVID-19 Work Refusal: Second Stage
- With reasonable grounds to believe work is still unsafe, worker continues to refuse and remains in safe place. Worker or employer or someone representing worker or employer calls Ministry of Labour (“MOL”)
- Employee stays in a safe place (like home);
- MOL Inspector investigates in company of worker, safety representative and supervisor. We expect there is to be significant delays in this step.
Ontario Employers should exercise diligence and not unreasonably deny a right of an employee to refuse work in light of coronavirus. The Ministry of Labour could take a long time to investigate; therefore, it is up to the employer to conduct a reasonable investigation and permit an employee to refuse work where it is reasonable.
07. Must a workplace close down because of COVID-19?
An employer must close down if it is subject to the government of Ontario Tuesday, March 24th at 11:59 p.m Order for the mandatory closure of all non-essential workplaces. Update: See this list for who can open in stages thereafter.
In addition, an employer should consider closing a workplace where it is reasonable to do so to protect worker safety. For example, where there is a distinct possibility COVID-19 could be spread in the workplace (because infected people came into contact with the workplace) and public health officials have advised, broadly, that such employers should close down affected workplaces. Perhaps, however, that only affected areas of the workplace need to be shut down (like a floor of an office building). Employers are advised to follow public health official direction to be sure.
Dutton Employment Law advises employers in all industries in Ontario on employer rights, employment law, human rights law and occupational health and safety law. Call for a free consultation with an employment lawyer