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On January 12, 2021, the Government of Ontario declared a second state of emergency under the Emergency Management and Civil Protection Act in response to the COVID-19 pandemic. At the same time, the government issued a province-wide Stay-at-Home Order and amended O. Reg. 82/20: Rules for Areas in Stage 1 (“Stage 1 Rules”) to introduce stricter lockdown measures starting January 14, 2021.

“Essential” Businesses

As of January 12, the entire province has been moved back to the grey zone and must operate under the Stage 1 Rules. While the list of businesses permitted to operate under the Stage 1 Rules is mostly unchanged, the Stage 1 Rules have been amended to include stricter health and safety measures:

  • Restricted Hours: Non-essential businesses, including those offering curbside pickup or delivery, may only operate between the hours of 7 am to 8 pm. These restricted hours do not apply to essential retailers such as grocery stores, pharmacies, gas stations, convenience stores, and restaurants for takeout or delivery and do not apply to discount and big-box retailers permitted to open.
  • Capacity Limits: Discount and big-box retailers that sell groceries and retailers that sell alcohol must limit occupancy capacity to 25%.
  • Work from Home: Employers must now ensure that their employees work remotely, except where necessary. Employees will be permitted to leave their homes to attend work if their workplace is permitted to be open and if the nature of their work requires them to be onsite. This requirement replaces previous guidance that “strongly encouraged” such workers to work from home.
  • Schools: School closures (online learning only) in Toronto, Peel, York, Hamilton, and Windsor-Essex will remain in effect until at least February 10, 2021, while schools in other regions will remain closed until at least January 25, 2021.
  • Masks: It is now mandatory for all individuals to wear a mask or face covering that covers their mouth, nose and chin when they are in indoor areas of a business, with limited exemptions. Now, enforcement personnel have the authority to issue tickets to individuals, employees, and businesses for not complying with masking requirements.
  • Physical Distancing: It is now mandatory for all individuals to maintain a physical distance of at least two meters from others while in an open business or facility. Now, enforcement personnel have the authority to issue tickets to any individual that does comply with physical distancing rules when inside an open business or facility.
  • Construction: Non-essential constructionhas been restricted to prescribed construction activities or projects, including projects and services associated with the healthcare sector and long-term care, projects necessary for or support the provincial infrastructure and internet and telecommunication services, projects that are due to be completed before July 2021, certain residential projects and projects that aid the production, processing, manufacturing or distribution of food, beverages or agricultural products, among others.

The new rules do not change for businesses Toronto, Peel Region, York Region, Hamilton, and Windsor-Essex, which were placed in the grey lockdown zone and were required to operate within the Stage 1 Rules towards the end of 2019. Accordingly, most businesses that were “essential” prior to yesterday continue to be “essential” and may continue to operate, subject to the new restrictions.

Stay-at-Home Order

The Stay-at-Home Order, which is expected to last at least 28 days starting January 14, requires Ontarians to stay at home, leaving only for essential purposes. According to the Order, Ontarians are only permitted to leave for the following reasons:

  • Essential Work: To attend work if their work is considered essential under the Stage 1 Rules and their employer has determined that the nature of their work requires attendance at the workplace.
  • Schools: While elementary schools, secondary schools, and post-secondary institutions are largely closed for in-person learning, individuals may leave their residence to provide training or receive educational services at such institutions.
  • Child Care Facilities: To attend, obtain, or provide child care services at child care facilities for children not old enough to be enrolled in school.
  • Goods and Services: To get goods and services for health and safety of oneself, family or animals (i.e., food, beverages, personal care items, healthcare items or services, curb side pickup, and financial institutions).
  • Assisting Others: Delivering goods or providing assistance to individuals who require assistance or support (i.e., children, individuals in congregate living settings, or members of the same household).
  • Self-Protection or Legal Purposes: To remove oneself from harmful or unsafe living conditions or for the administration of justice (i.e., domestic violence, seeking emergency assistance, or to attend court or similar place).
  • Exercise: To exercise outdoors.
  • Travelling or Moving: To travel outside of Ontario by means of airport, bus or train or to move to a new residence or between select secondary residences.
  • Gathering(s): Individuals who live alone leave their residence to gather with members of a single household.

Key Takeaways

Employers should review the Stay-at-Home order and amendments to the Stage 1 Rules to assess whether their business has been impacted.  Because the government did not amend the list of “essential” businesses and most parts of Ontario were already operating under the Stage 1 Rules, including the Greater Toronto Area, most employers that have been operating before the emergency declaration may continue to operate, subject to the new rules.

Employers that continue to operate, and require employees to attend onsite, should consider issuing travel letters to employees confirming that the nature of their work requires them to attend onsite. While the government has stated that law enforcement cannot stop individuals to verify compliance with the Stay-at-Home Order, employers should consider issuing such letters as a precaution.

Lastly, the government has announced that it will be increasing its workplace inspection efforts, particularly in high transmission workplaces. As such, all employers should review existing health and safety protocols and make updates as needed to ensure compliance. Employers should make an effort to provide necessary personal protective equipment to employees’ onsite. Employers with employees exempt from the masking requirement should take steps to ensure physical distancing is practiced at all times.

Many thanks to Dorna Zaboli for her assistance in drafting this article.