As the Covid-19 pandemic drags on many business owners are doing their best to work through the provincial state of emergency but fear they could face severe penalties from the government or be liable to employees who feel they are put at risk. To help your business navigate through these uncertain times, this article will provide a brief overview of what “essential” and “non-essential” businesses are, review a non-exhaustive list of liability concerns, and provide a checklist of best practices and recommendations.
ESSENTIAL VS NON-ESSENTIAL
On April 3, 2020, the Ontario government issued an order reducing the list of businesses classified as “essential” down to 44 categories. The province requires non-essential “workplaces” to close meaning only physical premises must close and not actual “businesses”. The most recent list of essential workplaces is available at https://www.ontario.ca/page/list-essential-workplaces.
The Ontario government has been clear that non-essential businesses may continue to operate and online commerce and work-from-home arrangements are permitted and in fact encouraged. Further, non-essential businesses are allowed to temporarily access their premises for specific purposes such as: performing work at the place of business in order to comply with any applicable law; allowing for inspections, maintenance, and repairs to be carried out at the place of business; allowing for security services to be provided at the place of business; attending at the place of business temporarily to deal with other critical matters related to the closure of the place of business if the critical matter cannot be attended to remotely or to access materials, goods, or supplies that may be necessary for the business to be operated remotely.
Conversely, just because a business is deemed “essential” does not mean it is free and clear from legal obligations to provide a safe workplace under Occupational Health & Safety legislation. As expanded on below, employers must generally identify the risk of exposure, assess the risk of exposure, and take every precaution reasonable in the circumstances to protect all stakeholders of the business.
In the event your business is deemed an essential service you likely still have many concerns. What if it is impossible for your workers to socially distance on a jobsite? What if one of your workers contracts the coronavirus even though you abided by all safety precautions? What if your workers do not feel comfortable returning to work but you are contractually obligated to complete a project? Can your workers successfully file a WSIB claim if they contract the coronavirus?
These questions are just a few of the many we are seeing on a daily basis from employers. Every situation is going to be fact based and needs to be analyzed on a case by case basis, but here are some key items all employers should keep in mind:
Ontario has the stiffest penalties for organizations who fail to comply with emergency orders. For corporations, non-compliance carries a maximum fine of $10 million. In the case of a director or officer of a corporation, non-compliance carries a maximum fine of $500,000.00 and a term of imprisonment of not more than 1 year. The intention of these severe fines was presumably to deter price gougers, but the possibility exists for the government to fine or charge small business owners who are simply trying to keep their company from going under. As a result, it is imperative that you ensure your business is deemed essential if your place of business is open or your workers are attending job sites.
Businesses always have a statutory duty to take reasonable steps to protect their workers. COVID-19 risks may lead to employee claims if employees who are continuing to work do not consider their workplace safe. Social distancing and sterilization measures and practices recommended by public health officials should be rigidly maintained. Businesses should have a written COVID-19 policy regarding the measures that the business has adopted to prevent the spread of COVID-19 and directives regarding employees who are symptomatic or quarantined. This policy should be readily visible to all employees and even customers.
WSIB & COVID
Workers are entitled to benefits for COVID-19 arising in the course of the worker’s employment. Claims will be adjudicated on a case-by-case basis; however, symptom-free workers are not provided with coverage even if the worker is quarantined or sent home for precautionary reasons.
The key factor in determining whether a worker is entitled to benefits is whether the worker’s employment duties were a significant contributing factor in the worker contracting COVID-19. Information about the work environment, work processes, job tasks, use or non-use of personal prospective equipment are all significant considerations.
CHECKLIST OF BEST PRACTICES
Businesses who are deemed essential and continuing to operate physically should implement the following measures:
- Travel Restrictions: employers are entitled to implement travel restrictions particularly when such travel is deemed as non-essential. While employers cannot ban personal travel, they can require employees to disclose personal travel information
- Self-Reporting Policies: businesses should create a system for employees to report their COVID-19 status aligned with public health recommendations
- Social Distancing Practices: businesses should consider reconfiguring the workplace to ensure an increased physical distance aligned with public health official recommendations
- Workplace Sanitization: businesses should be rigidly applying its cleaning procedures to ensure regular disinfection of the workplace generally
- Personal Protective Equipment: some essential businesses are unable to restrict close contact with other stakeholders of the business and should make mandatory the use of certain personal protective equipment
This article is only a brief overview of the most recent emergency provincial government order and it is imperative for businesses to continuously monitor updates from the provincial and federal government and seek legal counsel where appropriate during this pandemic. For assistance in preparing a Covid-19 workplace policy, determining what your business can and cannot do during the emergency order, or for any other information please contact Ken Ritson or Nathan Wainwright, or for other legal questions visit www.cheadles.com.