This is the sixth bulletin in a weekly series that provides a recap of important COVID-19 developments and their impact on employers as they navigate these challenging times. This recap covers the week of April 27, 2020 and is current as of May 4, 2020.
During the week of April 27, 2020, Ontario released a framework for reopening its economy and sector-specific labour guidelines for Ontario businesses to operate safely in the “new reality” that the COVID-19 pandemic has created. Later in the week, Ontario expanded the list of frontline workers that are eligible for “pandemic pay” and emergency child care, and also announced that some employers with “non-essential” workplaces can reopen beginning May 4, 2020. Finally, the Ontario and federal government each announced new funding to support virtual mental health care to help Canadians that are struggling to cope with the COVID-19 pandemic.
The key developments from this week are set out below.
Ontario has Announced a Framework for Reopening its Economy
On April 27, 2020, Ontario released A Framework for Reopening our Province (the “Framework”), a three-stage plan for reopening Ontario’s economy once the COVID-19 pandemic begins to subside, including the reopening of businesses, services, and public spaces.
It is crucial to note that the Framework is a plan on how the government will re-open Ontario not when it will do so. Public health officials will carefully monitor the specific circumstances in Ontario for two to four weeks during each stage (“Evaluation Periods”), before the next stage can be initiated.
The three stages of the Framework are as follows.
- Stage 1
- Opening select workplaces of businesses, but only if they can immediately modify their operations to meet public health guidelines.
- Opening certain public spaces and allowing more than five people to attend certain events.
- Allowing hospitals to perform some non-urgent and scheduled surgeries, as well as other health care services.
- Stage 2
- Opening additional workplaces, including some service industry, office, and retail workplaces, as guided by risk assessments.
- Opening more public outdoor spaces.
- Allowing for some larger public gatherings.
- Stage 3
- Allowing all workplaces to reopen, but in a responsible manner.
- Further reducing restrictions on public gatherings.
The criteria used by health experts to assess the situation and advise the government include:
- consistent decreases in daily COVID-19 cases during the Evaluation Periods;
- sufficient acute and critical care capacity at hospitals, including ventilator and personal protective equipment (“PPE”) availability;
- the ability of local public health officials to reach roughly 90% of new COVID-19 contacts within 24-hours, to provide instruction on how to prevent it from spreading; and
- the detection of new outbreaks, especially among vulnerable populations, through ongoing testing of suspected cases.
For more information on what the Framework means for your business, please read our recent article on this Resource Centre.
The Canada Emergency Wage Subsidy Application Portal has Opened
As had previously been announced, the application portal for the Canada Emergency Wage Subsidy (“CEWS”) opened on April 27, 2020. Accordingly, employers can now apply for the CEWS through their “My Business Account” on the CRA’s website.
For more information on the CEWS, please read our recent article and take a look at the FAQ video on this Resource Centre.
Wages Paid with the Federal Wage Subsidies are Insurable Earnings for WISB Purposes
On April 28, 2020, Ontario’s Workplace Safety and Insurance Board (“WSIB”) clarified how the federal government is characterizing wages that are paid to employees by employers that are receiving the Temporary Wage Subsidy and/or the CEWS, for the purposes of reporting insurable earnings to the WSIB. Wages paid to employees under the Temporary Wage Subsidy and CEWS are considered insurable earnings, rather than employment insurance benefits or social assistance.
Employers that are in receipt of either federal wage subsidy must ensure they include all wages that are paid to employees under either of the wage subsidies as employees’ insurable earnings when reporting the same to the WSIB.
Ontario’s Ministry of Labour has not Upheld any COVID-19 Related Work Refusals
On April 28, 2020, the Toronto Star reported that the Ontario Ministry of Labour (“MOL”) had not upheld any work refusals by workers based on concerns relating to COVID-19 at the time of writing.
Under the OHSA, provincially-regulated workers in Ontario are entitled to refuse to perform work without fear of reprisal if they have reason to believe that it is “likely to endanger” themselves or others, unless the danger is inherent to or a normal condition of the worker’s employment or the worker’s refusal would directly endanger the life, health, or safety of another person. Employees in all other jurisdictions in Canada have similar rights.
Consequently, workers may refuse to perform work where they believe it puts them at risk of contracting COVID-19.
The OHSA requires employers to investigate the alleged danger in the presence of the worker and the workplace’s Health and Safety Representative or Joint Health and Safety Committee, as applicable. Where a resolution cannot be reached, the employer must ensure that the Ministry of Labour (“MOL”) is notified, and an MOL Inspector must then investigate.
For more information on the implications of the MOL’s approach to COVID-19-related work refusals so far for your business, please read our recent article
Expanded Eligibility Criteria for the Canada Emergency Response Benefit
On April 29, 2020, the federal government published two interim orders that amend the Employment Insurance Act, to enact the expanded eligibility criteria for the Canada Emergency Response Benefit (“CERB”) that it had previously announced.
Interim Order No. 2 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit), allows workers to earn up to $1,000 from employment or self-employment during the 4-week period for which they apply for the CERB and still be eligible to receive the CERB. Interim Order No. 3 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit), allows workers who have recently exhausted their employment insurance entitlements and who cannot find new work for COVID-19 related reasons to access the CERB.
Ontario Has Expanded the List of Frontline Workers Eligible for “Pandemic Pay”
On April 29, 2020, Ontario expanded the list of frontline workers who are eligible for the temporary “pandemic pay” that was announced on April 25, 2020 (read our Week in Review #5 for an overview of pandemic pay).
The following types of workers were added to the list and will be eligible for pandemic pay:
- respiratory therapists in hospitals and in the home and community care sector;
- public health nurses; and
- addictions and mental health workers.
For the implications of what this means for your business, please read our recent article.
Ontario Has Expanded the List of Frontline Workers Eligible for Emergency Childcare
On April 29, 2020, Ontario also expanded the list of frontline workers who are eligible to receive free emergency childcare during the COVID-19 pandemic.
The newly eligible frontline workers include:
- Workers in grocery stores and pharmacies;
- Truck drivers with Class A and Class D licenses;
- Workers in the food supply chain, including food processing;
- Workers in retirement homes;
- Auxiliary workers in healthcare settings, such as cooks and cleaning staff in long-term care homes and hospitals;
- Interpreters and intervenors that support people that are deaf or hard of hearing;
- Emergency personnel of the Ministry of Natural Resources and Forestry;
- Provincial officers and on-site court staff;
- Members of the Canadian Armed Forces and Department of National Defence working in Ontario; and
- Additional workers supporting public safety and corrections.
Employers of workers that are now eligible for free emergency childcare during the COVID-19 pandemic would be well advised to communicate to all such employees that they may be eligible for this benefit. Doing so will ensure that all eligible employees in need of emergency childcare will promptly know that temporary free childcare is available to them. Moreover, where such employers are facing staffing shortages, the availability of emergency childcare may help encourage attendance among employees that have been struggling to balance their work and childcare responsibilities during this trying time.
Ontario Has Released Sector-Specific Labour Guidelines for Businesses to Operate Safely in the “New Reality” Created by COVID-19
On April 30, 2020, Ontario released new sector-specific labour guidelines to help businesses operate safely in the new reality that the COVID-19 pandemic has created. Ontario has also promised that more sector-specific guidelines will be released in the coming weeks.
Sectors Covered by the Guidelines
The guidelines initially released by the government cover all workers within the following broad sectors:
Guidelines Applicable Across Sectors
Many of the guidelines are broadly applicable across sectors, and are therefore included in the guidelines for all sectors. For example, the guidelines provide that workers in all sectors should:
- cough and sneeze into their sleeve;
- stay home if they are sick;
- avoid touching their eyes, nose, and mouth; and
- wash their clothes as soon as they get home.
Similarly, a few examples of the guidelines that are applicable to employers in all sectors include:
- posting policies relevant to COVID-19;
- providing workers with ways to properly clean their hands;
- sanitizing commonly touched surfaces or areas;
- sending workers with symptoms related to the common cold, the flu, or COVID-19 home;
- sharing information and communicating each worker’s roles and responsibilities for maintaining health and safety in the workplace;
- tracking where workers have been, in case this information becomes necessary for the purposes of contact tracing; and
- conducting a risk assessment if one or more workers tests positive for COVID-19.
The guidelines for each sector also include tips on how to ensure appropriate physical distancing of at least two metres between workers is maintained in workplaces, such as by:
- staggering workers’ start times, breaks and lunches;
- holding meetings outside or in a large space;
- posting signage on hygiene; and
- limiting unnecessary on-site interaction between workers.
Guidelines that are Truly Sector-Specific
Only a few of the guidelines announced on April 30 are truly sector specific. For example, employers in the construction sector should limit the number of workers that can use hoists at one time and avoid the sharing of hand tools and power tools.
To understand what the guidelines mean for your business, please read our recent article.
Some Ontario Businesses Reopened Their Workplaces on May 4, 2020
On May 1, 2020, Ontario Premier Doug Ford announced that certain Ontario businesses would be allowed to reopen their workplaces on Monday, May 4, 2020. These workplaces may reopen because they can immediately operate safely, in compliance with public health measures.
The following types of businesses were allowed to reopen on May 4, 2020:
- lawn care and landscaping services;
- garden centres and nurseries with curbside pickups;
- automatic and self-serve car washes;
- auto dealerships (by appointment only);
- site preparations for construction projects; and
- certain essential construction projects, such as broadband telecommunications, municipal projects, and school projects.
Further, marinas and golf courses are allowed to have employees perform preparatory work for opening their workplaces for the season beginning May 4, 2020, but will not be allowed to open to customers until a later date, which has not been set yet.
For more information about what this initial reopening means for your workplace, take a look at our recent article.
New Funding for Virtual Mental Health Care
On May 3, 2020, the federal government announced that it will provide $240 million in funding to expand the virtual provision of mental health care and other medical services. Details about how the funds may be directed have not yet been released.
The federal government’s announcement comes after a similar announcement by Ontario on April 2, 2020, illustrating the importance of virtual mental health care in the context of the COVID-19 pandemic. Ontario announced that it is providing $12 million in funding to expand online and virtual mental health supports to help Ontarians who are struggling to cope with the COVID-19 pandemic and its consequences, including dedicated supports for frontline workers. The province has stated that this emergency funding will be provided to certain mental health agencies for purposes including hiring and training additional staff, and purchasing necessary equipment, technology, and licenses.
The mental health services that are set to be immediately expanded include:
- BounceBack: A guided self-help program for adults and youth aged 15 and over using workbooks with online videos and phone coaching support;
- Kids Help Phone: 24/7 virtual support service offering professional counselling, information and referrals as well as volunteer-led, text-based support to young people in both English and French at 1-800-668-6868;
- Internet-based Cognitive Behavioural Therapy (iCBT): Online CBT, supported by therapists; available in English and French;
- iCBT for frontline health care workers: Online CBT targeted at frontline health care workers experiencing anxiety, burnout or PTSD. Those requiring intensive levels of care could be referred to virtual face-to-face care; and
- Training for Brief CBT-based interventions: Training will be provided to frontline workers in organizations such as Telehealth and emergency departments in order to better support individuals experiencing acute anxiety due to the pandemic.
As has been widely reported in recent weeks, mental health problems are on the rise in Canada amid the COVID-19 pandemic, which employers will need to consider and address while stabilizing their workplaces during the pandemic and restoring it in the wake of the pandemic.
As the number of Canadians with mental health conditions increases during this challenging time, employers are more likely than ever before to have to accommodate medical limitations arising from these disabilities. Under the Ontario Human Rights Code, Ontario employers must provide reasonable accommodations for all work-related limitations arising from a disability or another protected ground, unless providing such accommodations would cause the employer “undue hardship” (read our recent blog for an overview of employers’ duty to accommodate and the accommodation of “family status” limitations). Similar legislation obligations exist in other provinces and territories.
As a best practice, employers should take a proactive approach to assist employees who may be struggling with mental health conditions before the duty to accommodate is even triggered. Although there is no one-size-fits all solution, employers that are able to do so should consider providing or expanding an employee assistance program to ensure that employees can access virtual mental health services. Similarly, employers could consider providing employees with mindfulness training and/or resources to help equip them with valuable coping skills to manage stress arising from the COVID-19 pandemic and its consequences. Taking these proactive steps will not only benefit employees who are struggling with mental health conditions, or are at risk of developing such conditions, it will also demonstrate compassion to workers during a time of crisis, which could help increase workplace morale, limit absenteeism, and prevent drops in productivity.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.