On December 18, 2020, Vera Etches, Medical Officer of Health for the City of Ottawa (the “City”), issued a Letter of Instruction (the “Letter”) to all employers in the City permitted to be open under the Reopening Ontario Act and Related Regulations. The Letter sets out Ottawa Public Health’s instructions regarding the additional actions to be taken by employers in order to reduce the transmission and spread of COVID-19. These measures took effect as of 12:01 a.m. on December 23, 2020.
To the extent that anything in the Letter conflicts with other applicable provincial legislation or directives, the Letter explicitly states that the provincial requirements prevail. Where there is no conflict, the instructions contained in the Letter are additional to any applicable provincial requirements.
Notification
If two or more people test positive for COVID-19 within a 14-day period in connection with a workplace, the employer must immediately notify Ottawa Public Health at (613) 580-2424 ext. 26325, and provide contact information for a designated contact person in the workplace. The contact person is responsible to be readily available to communicate with, and immediately implement any additional measures as may be required by, Ottawa Public Health. The employer must additionally ensure that it has accurate, up-to-date contact information for all employees (including all independent contractors, directors, owners, volunteers and students, etc.), such that the contact information can be produced to Ottawa Public Health within 24 hours of any request, in order to support case management and contact tracing.
The employer must also notify the Ontario Ministry of Labour, Training and Skills Development and/or other relevant government authorities.
Finally, the employer must then cooperate with infection prevention and control personnel at Ottawa Public Health, including allowing entry into the workplace for inspection, and implementing enhanced infection prevention and control measures and recommendations.
Employee Awareness of Available Benefits
In order to encourage employees to report COVID-19 symptoms, all employers must ensure that their employees “are aware of any benefits and/or pay to which they may be entitled in the event that they must isolate due to having symptoms of COVID-19, being tested for COVID-19, or being a close contact of someone infected with COVID-19.”
Physical Distancing
Employers must ensure that physical distancing of at least two metres between employees, and between employees and members of the public, is maintained throughout the workplace wherever reasonably possible, and during all eating and rest periods. One-way walkthroughs and workflows (e.g., directional arrows) are to be implemented where applicable. Wherever reasonably possible, and especially when physical distancing cannot be maintained, physical barriers, such as plexiglass, should be used.
While the Letter sets out requirements for capacity limits in shopping malls and retail businesses located therein, for the time being, those requirements have been largely superseded by the requirements associated with the province-wide shutdown. One requirement that remains applicable to businesses located within and outside of malls, however, is the posting of the maximum capacity and square footage of the retail space in a conspicuous place.
Masking
Employers are responsible to ensure that employees wear a mask or other appropriate face covering while working in an indoor area that is accessible to members of the public. When working in an indoor area that is not accessible to the public, employees must wear a mask or other appropriate face covering any time they cannot maintain physical distancing of at least two metres from every other employee.
The masking requirement remains subject to the exceptions set out in the provincial regulations and the City’s Temporary Mandatory Mask By-law.
Exempt Businesses and Organizations
The following businesses and organizations are exempt from the application of the actions outlined in the Letter as a result of sector-specific legislation, directives and/or guidelines already governing COVID-19-related measures:
- Licensed child care programs;
- Health care providers and health care entities as defined in section 77.7 of the Health Protection and Promotion Act that are subject to the Chief Medical Officer of Health’s Directives;
- Personal care service providers as described in O. Reg. 364/20;
- Schools and school boards licensed under the Education Act; and
- Schools and private schools within the meaning of the Education Act that are operated in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health.
During the Province-Wide Shutdown
As the Letter expressly provides, any provincial legislation or directives that conflict with it shall prevail, and any instructions within the Letter must be considered to be in addition to the applicable provincial requirements.
At this time, given the provincial shutdown that took effect at 12:01 a.m. on December 26, 2020, Ottawa employers and, indeed, all employers in the province are subject to additional restrictions in order to reduce the transmission of COVID-19. The shutdown is currently slated to last for 14 days in Northern Ontario, and 28 days in the southern portions of the province, including Ottawa. For the duration of the shutdown, the usual application of province’s colour-coded COVID-19 Response Framework is temporarily paused, and all regions have been moved into the “Grey – Lockdown” zone, to which the recently amended “Stage 1” Rules apply. Because these rules are detailed, extensive, and often industry-specific, and because they are similar but not identical to those that were in place during the initial shutdown of early 2020, employers should make sure to review and abide by the current rules. Two of the key requirements, however, which are applicable to all Ontario employers whose businesses are otherwise currently permitted to open, are as follows:
- Operating in accordance with all applicable laws, including the Accessibility for Ontarians with Disabilities Act (“AODA”) and the Occupational Health and Safety Act, and in compliance with the advice, recommendations and instructions of public health officials; and
- Preparing and making available a safety plan that describes the measures the employer has taken or will take to reduce the transmission of COVID-19.
Additionally, employers in all industries have been asked to make every effort to allow employees to work from home during the shutdown.
In Our View
Given the vital role of workplaces in helping to curb the transmission of COVID-19 in our community, Ottawa-based employers are well-advised to familiarize themselves with the requirements set out in the recent Letter of Instruction. Employers with operations in the City of Toronto will similarly wish to review the Letter of Instruction issued by that municipality’s Public Health Unit. All Ontario employers should also be familiar with the current Rules of Areas in Stage 1, which the province has stated are applicable to employers in all regions of Ontario during the shutdown.
As has been the case throughout the COVID-19 pandemic, government laws and regulations, as well as directives and recommendations from local public health units, often change quickly. Accordingly, should the summary provided in this article conflict with any updated provincial legislation or local directive, that legislation or directive will prevail. (Readers may follow the in-text links provided above to view the most current legislation and directives/instructions.)
For more information on your obligations as an Ottawa area employer dealing with enhanced COVID-19 prevention measures, please contact Sheri Farahani at 613-940-2745, Vicky Satta at 613-940-2753, Céline Delorme at 613-940-2763 or Erica Bennett at 613-940-2748.
