On January 31, 2022, all public health units in Ontario will again move to Step 3 of its Roadmap to Reopen. The Rules for Step 3 are set out in the Step 3 Regulation, along with any other conditions which apply in specific public health units. The Ontario government has summarized the changes that will come into effect in Step 3 here.
Work from Home Requirement Lifted
Of note to Ontario employers, particularly those who operate office-based environments, is that the Step 3 Regulation does not contain the explicit language that is currently set out at Section 2.1 of Ontario Regulation 263/20, Rules for Areas in Step 2 (the "Step 2 Regulation") with respect to working from home.
As a reminder, the Step 2 Regulation, which has been in effect since January 5, 2022 (see here on our blog), states, "each person responsible for a business or organization that is open shall ensure that any person who performs work for the business or organization conducts their work remotely, unless the nature of their work requires them to be on-site at the workplace."
Despite this omission, we caution that Ontario's Chief Medical Officer, Dr. Kieran Moore, is still recommending that employees who can work from home continue to do so in order to limit their contact with other people. Further, the Ontario COVID-19 Public Health Measures website continues to state that employees should work remotely, unless the nature of their work requires otherwise. The author of this article called the Ontario "Stop the Spread" business phone line to confirm their policy and was advised by a representative that while work from home will no longer be required by regulation, it is still recommended. We expect that the Ontario website will be updated to reflect these policy changes and will continue to monitor this issue.
Finally, we note that the Step 3 Regulation includes a general compliance requirement in Section 2.1(1) that all businesses operate "in accordance with all applicable laws, including the [Ontario] Occupational Health and Safety Act ["OHSA"] and the regulations made under it." The OHSA requires all employers to take every precaution reasonable in the circumstances for the protection of their workers and to keep their workers and workplaces free of hazards. These duties would include taking every reasonable precaution to protect workers from workplace exposure to infectious diseases such as COVID-19, a nuanced assessment that should be undertaken in consultation with legal counsel (and with the workplace joint health and safety committee or health and safety representative, if/as applicable). Employers must also comply with applicable distancing and capacity limit requirements which may place additional limits on their ability to return workers to the workplace.
Impact and Recommendations
Similar to our recommendations from July 2021 (linked here), when Ontario last entered Step 3 of the Reopening Plan, while the legislature's removal of the "work from home except where necessary" requirement in the Step 3 Regulation is indicative of a softening of the rules, we caution Ontario employers to proceed carefully in returning their workers to the workplace. We are actively monitoring for new developments and any updates will be posted on this blog.
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