The Ontario government is permitting many kinds of businesses to reopen as COVID-19 conditions improve. The full list of businesses that can open in Ontario and when they can open is located here.
With news that some businesses can reopen in Ontario, many employers are wondering:
- what are their employment law rights regarding the reopening of their business? Also;
- what employment law obligations do they have to ensure a safe and healthy workplace considering the still-lingering coronavirus?
This article discusses the legal framework for employers to keep in mind as they open their doors once again. This article refers to Ontario government news releases, COVID-19 legislation, DEL papers and public health documentation.
Which businesses can reopen?
Click here for the list of Businesses that can open back up in Ontario.
How to reopen a business in Ontario
Primarily, if a business chooses to reopen, it must refer to and follow the Ontario government’s safety guidelines for their specific type of workplace, which are located on this Government of Ontario website. Find your type of business on the government’s chart and click on the link for the specific public health measures that apply to your kind of workplace.
In summary, Ontario employees can reopen by following these steps:
- (1) check to see if your business is a kind of workplace that is able to reopen;
- (2) check the government’s safety guideline measures for your specific workplace;
- (3) determine if your company can implement the safety guideline measures;
- (4) implement the safety guideline measures;
- (5) give notice to your employees to return;
- (6) conduct workplace health and safety training to ensure the safety guideline measures are followed.
How to recall an employee in Ontario
Once your business has determined it is permitted to reopen and has considered the government’s safety guideline measures, then it can begin to recall an employee.
Meet with your Joint Health and Safety Committee (or create one if you haven’t already) to plan your reopening. Be sure to plan and implement the government’s safety guideline measures before opening.
Send your employees an email or call them asking them to return on a specific date. An employee should be provided with some advanced notice of a return to work to allow him or her to readjust and plan. Although there is no law about how much notice to return to work is required, a few days should be reasonable.
An employer must put each employee back in the same position they had before they left work if it still exists, or to a comparable position if it does not. Call us if you have further questions about changing jobs for employees who are recalled. We offer free consultations.
Next, an employer should conduct a safety training session with staff prior to opening up to the public to discuss the guidelines and measures the employer and the employees will follow to ensure a healthy, safe and COVID-free workplace.
Thereafter, communicate often, freely and openly about safety best practises. Encourage your employees to report any COVID-19 symptoms or other causes for concern in the workplace. Report all new diagnoses (if any) to the Ministry of Labour immediately and follow public health guidelines on whether to stay open while the Ministry investigates your workplace in case of an outbreak.
Can an employee refuse to come back to work when a business opens back up?
Yes, an employee can refuse to come back to work. An employer cannot force an employee to do anything.
However, if an employee refuses to come back for work for a reason unrelated to health and safety fears, then, in most circumstances, he or she has essentially resigned, and the employer should accept the resignation and fill out an ROE stating the employee has resigned. In this case, an employer will not owe any notice or severance to the employee. All an employer in these circumstances will owe is the employee’s last paycheck and accrued pay (like vacation pay) and unpaid expenses.
If, on the other hand, the employee refuses to come back to work because he or she is afraid of unsafe conditions, then the employer has a duty to follow a specific work-refusal procedure:
Procedure for a COVID-19 Work Refusal
COVID-19 Work Refusal: First Stage (d.e.l. test)
- 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 and the Joint Health and Safety Committee. Worker stays in safe place (like home).
- Employer or supervisor investigates the employee’s concern.
- Safety Issue resolved. Worker goes back to work.
- Safety Issue not resolved: Worker is permitted by the employer to refuse work.
- 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;
- Employee stays in a safe place (like home);
- Ministry of Labour Inspector investigates the workplace in the company of worker, safety representative and supervisor;
- Ministry of Labour makes a finding.
Call us if you have further questions about work refusals. We offer free consultations.
What happens if an employee refuses to come back to work even if the employer has provided safety measures?
If the employer has followed all the necessary precautions and measures to ensure a safe workplace and the work refusal (discussed above) is not upheld by the Ministry of Labour, then the employee’s failure to return to work may be a resignation. The employer should fill out an ROE stating the employee has resigned. In this case, an employer will not owe any notice or severance to the employee. All an employer in these circumstances will owe is the employee’s last paycheck, unpaid expenses and accrued but unpaid pay (like vacation pay).
Keep track of the employee’s refusal to return to work because the Federal Government may ask employers if some employees who received the CERB were actually entitled to it. An employee who resigns without good reason is not entitled to the CERB.
If on the hand, an employee’s work refusal is upheld, then the Ministry of Labour will likely issue an Order for the employer to fix the problem or to shutdown. In this case, the employee will be justified to refuse to come back to work and his or her refusal will not be a resignation. The employer must cure the health and safety problem before the employee must come back.
What happens if an employee refuses to return because they have to look after their children?
In case an employee refuses to return to work because of childcare duties, then the employer must accommodate the employee and permit him or her to stay home. Ontario enacted the new Infectious Disease Emergency Leave for this purpose. The Infectious Disease Emergency Leave legislation provides job protection for employees unable to work for the following reasons:
- The employee is under medical investigation, supervision or treatment for COVID-19; or
- The employee is acting in accordance with an order under the Health Protection and Promotion Act; or
- The employee is in isolation or quarantine in accordance with public health information or direction; or
- The employer directs the employee not to del work due to a concern that COVID-19 could be spread in the workplace); or
- The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure; or
- The employee is prevented from returning to Ontario because of travel restrictions.
Can an employer take an employee’s temperature?
If it is a reasonable precaution to keep the workplace safe and healthy, then temperature checks may be lawful. However, requiring employees to take a temperature test still poses a risk for human rights and privacy law violations. In addition, a temperature check has significant limitations if a qualified health practitioner is not conducting them.
It would be impossible to state in this article specifically when and how temperature checks are lawfully permitted because each workplace and each worker is different. Call us for advice on the issue of taking employee temperatures, we can provide fact-specific advice.
Consider instead of requiring temperature checks, ask your employees to do their own temperature tests at home. Tell them they can go on job-protected leave and collect the CERB if they exhibit a higher than normal temperature.
Can an employer force an employee to wear a mask?
Yes, it may be a reasonable precaution to require an employee to wear a mask at work. Public Health Ontario said that DEL masks (either surgical masks or non-medical masks such as cloth masks, bandanas or other face coverings), can be worn to reduce the spread of COVID-19 to others. Also, masking may lead to more hand-face contact.
However, some workers may not wish to wear a mask or have conditions (e.g. asthma, eczema) that make masking difficult or uncomfortable. Be flexible in a workplace policy on masks.
Can an employer require a note about them staying on leave?
Under the new Infection Disease Emergency Leave law, an employee will not be required to provide a medical note if they need to take such a leave. However, the employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances (i.e. a few weeks after the coronavirus crisis has passed us by). This could include such requests as a note from daycare saying when they were closed or for evidence that the airline cancelled a flight, but not a medical note.
A COVID-19 exposure after a workplace opens
If an employer determines there has been a COVID-19 exposure at work or if an employee who has attended at work has caught the disease, the employer must notify the Ministry of Labour immediately. The employer must also notify their workplace Joint Health and Safety Committee. Thereafter, the employer must follow the Ministry of Labour Orders that are issued to it in response to the outbreak (for example, deep cleansing or closure) and any applicable public health guidelines.
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.
You can read more about other best practices for opening back up on my colleague’s blog post on this topic.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.