On July 16, 2021, Ontario entered “Step 3” of its Roadmap to Reopen, which allows for expanded access to indoor settings and the relaxing of rules in respect of certain businesses. The parameters for Step 3 are set out in Ontario Regulation 364/20, Rules for Areas at Step 3 (the “Step 3 Regulation”), as summarized here by the Government of Ontario. This summary includes the applicable business restrictions. With respect to “work from home” requirements, the Step 3 Regulation has been amended. However, as detailed below, the overall Ontario policy in this regard appears to be unchanged as of today's date.
Work from Home Rules
Of note for employers with a significant remote workforce (in particular, those who operate office based environments) is that the Step 3 Regulation does not contain the explicit “work from home except where necessary” requirement that was set out at Section 2.1 of Ontario Regulation 263/20, Rules for Areas in Step 2 (the “Step 2 Regulation”). As a reminder, the Step 2 Regulation stated “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.”
Notwithstanding the removal of this language, Ontario's COVID-19 (Coronavirus) and Workplace Health and Safety guidelines continue to state that “where possible, workers should work from home.” Similarly, the province's Develop your COVID-19 Workplace Safety Plan guidelines state that, as the most effective control measure to reduce the risk of COVID-19 in the workplace, “all workers who can work from home should continue to do so.” The writer of this article also contacted the Ontario “Stop the Spread” business line by phone and a representative confirmed their policy of working from home where possible.
Notably, the Step 3 Regulation also includes a general compliance requirement 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.” 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).
Impact and Action
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 not to rush to return their workers to the workplace given the Ontario guidelines and overarching OHSA duties. This said, the change in the regulations may be indicative of legislative and policy changes to come. We are actively monitoring for new developments and any updates will be posted on this blog.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
