289-389-4499 info@molylaw.com

Many workplaces are now re-opening or expanding their operations again after 2 months of COVID-19 closures. Others have already re-opened. Workers and employers alike may be wondering: Is this business as usual? Is my workplace essential now? How do we work safely during COVID-19?

NOTE: This post is general information, not legal advice. If you are unsure if it is safe or legal to return to work you should contact an employment lawyer or your union as soon as possible. Work refusal is complicated, and the legal issues raised by COVID19 in the workplace are new, unusual and change quickly. Consult current resources or a lawyer wherever possible.

Employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

This post was published on 18 May 2020.

What workplaces can re-open?

Many businesses closed in response to emergency orders starting March 18. Some “essential workplaces” have been allowed to stay open throughout the pandemic (such as grocery stores, pharmacies, law firms, etc.). You can find a complete list of essential workplaces here.

This Saturday (May 16), additional businesses were allowed to re-open. These included:  

  • Golf courses, including clubhouse washrooms and take-out.
  • Marinas, boat clubs and public boat launches for recreational use.
  • Private parks and campgrounds. They may prepare for the season and allow access for trailers and recreational vehicles whose owners have a full season contract.
  • Businesses that board animals, such as horse stables. They may allow boarders to visit, care for or ride their animal.

On Tuesday (May 19), more businesses will be allowed to open. This includes:

  • Stores that have their own street-front entrances and are not part of a shopping mall. However, they must have physical distancing or social distancing measures in place. Fitting rooms must have doors, not curtains.
  • Seasonal businesses and recreational activities for individual or single competitors. This includes indoor and outdoor solo sports that can be played while maintaining physical distancing and without spectators. The government provided examples like tennis, track and field, horse racing, rod and gun clubs, indoor driving ranges, fencing, rock climbing, gymnastics, car or motorcycle racing, and outdoor water sports on lakes or rivers (not in pools). High-contact sports are not permitted (things like squash, boxing, wrestling, and martial arts).
  • Animal services, specifically pet care services and regular veterinary appointments.
  • Indoor and outdoor household services, such as housekeepers, cooks, cleaning and maintenance.
  • Construction work previously shutdown as non-essential.
  • Some health and medical services. This includes urgent and non-urgent in-person counselling, psychotherapy, and support services as well as scheduled surgeries. Medical and mental health professionals should consult profession-specific guidance.
  • Libraries, for pick-up or delivery.
  • Car dealerships (previously, car dealerships were only open by appointment).
  • Motor vehicle emissions testing.
  • General maintenance and repair services, including repairs that aren’t “strictly necessary” (which was the old rule).
  • Specific scientific research and development work (if you’re a scientist, we encourage you to check out the list- but many scientists were already working in essential workplaces under the old rules).

The Ontario government has prepared a detailed list of stage-1 openings that you can consult.

Does this mean that my workplace has to re-open now?

No. Unless your workplace is a government office, your employer has a choice about re-opening. Or, if you are an employer, you have a choice. Re-opening isn’t mandatory. In fact, if working from home is working for you, the government encourages you to continue. And, the Ministry of Labour and Ministry of Health still have the power to shut down businesses or stop specific work if workers or the public are unsafe.

However, refusing to come back to work when your employer re-opens has risks. Generally, employees have to do what their bosses tell them. There are some exceptions when it is unsafe to do so, or impossible because of your childcare or disability-related needs. But, there are specific rules to follow if you can’t return to work for those reasons. And it can be complicated! Our posts on Coronavirus work refusals and COVID-19 leaves in Ontario provide some basic information, but employees in this situation should get legal advice or talk to their union.

What is the guidance for re-opening?

The government provides industry-specific Resources to Prevent COVID-19 in the Workplace . These resources give advice about how to follow social distancing rules at work when re-opening. They also explain what type of personal protective equipment (aka PPE) might be appropriate for your workplace. This can include things like masks.

For example, the Workplace Safety and Prevention Services Guidance on Health and Safety for Retail Sector during COVID-19 encourages stores to provide online ordering, delivery and curbside pick-up so customers don’t need to come inside. It also encourages stores to use floor markings to encourage social distancing, and suggests using contactless payment methods and barriers between cashiers and customers. In fact, they offer specific Guidance on Health and Safety for Cashiers and Retail General Labourers.

While the Guidance frames training workers on COVID-19 precautions as an “option”, training workers or workplace health and safety risks is mandatory under the Ontario Occupational Health and Safety Act. So too is providing the tools that people need to work safely. So, while things like hand sanitizer or hand washing stations or managing the number of customers in the store are also called “options”, they may not really be optional in some cases. If you’re unsure if occupational health and safety requirements are being met in your workplace, call a lawyer immediately to get advice.  

What are the social distancing and self-isolation rules now that we’re re-opening?

This is a tricky question. For one thing, the rules change often and it’s hard for even experienced lawyers to keep up. For another, guidance differs a little depending on where you look. You might see one thing in Ontario’s emergency legislation, another coming from Public Health Ontario or your local public health authority, still another from Health Canada.

Here are a few key emergency orders that remain in place under Ontario law today (18 May 2020):

  • Businesses need to follow public health advice on social distancing, cleaning and disinfecting.
  • Even though retain stores can remain open, Schedule 3 of O Reg 82/30: Closure of Places of Non-Essential Businesses  provides at section 2 that most retailers must restrict public access to their stores as much as possible by providing alternatives like curb-side pick-up and delivery.  
  • No public events, social or religious gathers of more than 5 people. This includes events in your home. It does not include single households that have more than 5 people in them. An exception permits up to 10 people to attend a funeral.

Public Health Ontario explains what physical distancing or social distancing means. Some key things to remember if your workplace is re-opening:

  • Stay at least 2 meters or 6 feet away from other people if possible.
  • Avoid shaking hands.
  • Avoid crowded elevators.
  • If you use public transit, try to avoid peak hours.
  • Clean your hands with soap and water or hand sanitizer.

If you’re re-opening a business, it’s important that you get legal advice specific to your work. Same if you are considering refusing to return to work or refusing to do certain jobs at your workplace because of health concerns. As we mention at the top of this post, a lawyer’s blog post is not a substitute for legal advice or scientific or medical information.

How long is the COVID-19 emergency going to last? Does re-opening mean it’s over?

We don’t know. Recently, the declaration of emergency in Ontario was extended until June 2, 2020. However, it is very possible that the emergency will be extended again at that time. Some regulations are set to expire tomorrow (19 May 2020), but we assume that they will be extended – the Ontario Legislature is meeting tomorrow to vote on this and other issues.

RESOURCES

You may also be interested in some of our blog posts:

DISCLAIMER: This blog is for educational and informational purposes only. Results of cases described in these posts may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour,  employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.