The COVID-19 pandemic, as well as the public’s attitudes towards mandatory policies in general, is continuously changing. As we start moving to what some may call a “Post” COVID life, or living “with” COVID, more and more organizations are beginning to bring employees back to in-office work. Under Ontario’s reopening plan, we are under Step 3, “The Roadmap Exit”. This step, which began on March 21, 2022, saw the lifting of essentially all COVID-prevention requirements from majority of employers, with limited exceptions that focus on high-risk environments.
At the same time, we are in a new wave of the pandemic. So, although most public health mandates have been lifted for majority of employers respecting the requirement to have COVID-prevention measures in place, there are important legal considerations respecting health and safety that employers must keep attuned to.
Employers always hold a duty under the Occupational Health and Safety Act to take all reasonable measures to keep a safe workplace for its employees, including from infectious diseases. In the context of the pandemic, the safety of a workplace varies according to each workplace’s characteristics, such as the need for employees to work indoors or be in close proximity. Throughout the pandemic, work refusals pursuant to the OHSA have had limited success, as Ministry of Labour inspectors have upheld the safety of workplaces where public health guidance being followed regarding:
- Mask mandates
- Physical distancing
- Pre-entry screening requirements
- Cleaning & disinfecting protocols
As government mandates are lifted, the question becomes whether workplaces that choose to lift their own policies remain “safe” for the purposes of the OHSA. This has not been decided by relevant authorities. However, considering that the government has itself said that society is “safe” without COVID-prevention measures in place, many believe it unlikely that the Ministry would require additional measures to be “safe” in a workplace setting. Nonetheless, employers must consider the characteristics of their own work environment and keep or implement reasonable measures that ensure their employees’ health and safety. The need for these measures may vary according to public health concerns relevant to the circumstances at any given time.
Notably, on April 11, 2022, Bill 88, Working for Workers Act, 2022 received Royal Assent (not to be confused with Bill 27, Working for Workers Act, 2021). Bill 88 amended the OHSA by increasing various fines applicable for convictions under the Act, which will come into effect on July 1, 2022. For example, directors and officers of a corporation that fail to fulfill their duty to ensure that the corporation complies with the OHSA may now be fined up to $1,500,000. The amendments include a new list of aggravating factors in determining the fines. Bill 88 also increased the period within which the Ministry may prosecute a corporation or individual for breaching the Act, from 1 year to 2 years.
Despite government mandates being lifted, private businesses still hold discretion to implement their own policies respecting COVID prevention measures, if they so wish. Just because the government does not require it, does not mean that businesses cannot do so. However, where a business does choose to either keep or amend policies, these must be reasonable in the context of the business, must be clearly communicated to employees, and must not be discriminatory under relevant human rights legislation, such as the Ontario Human Rights Code.
Veronica Blanco Sanchez is an associate in the litigation department at Perley-Robertson, Hill & McDougall. Veronica’s practice focuses on general litigation, particularly in the areas of labour and employment, civil litigation, commercial litigation, administrative law, and privacy law. If you are interested in implementing or amending COVID-19 preventative measures at your workplace, please reach out to Veronica at vblancosanchez@perlaw.ca or speak to one of the employment lawyers at Perley-Robertson, Hill & McDougall LLP.
