The Ontario Government announced its intention to expand the closure of all “non-essential” businesses on April 3, 2020 in response to the COVID-19 pandemic. The announcement included plans to extend the shutdown to April 17, 2020 and to include new workplaces on the list of businesses that must be temporarily closed.
But despite the media attention to this announcement, details of what exactly the shutdown means for employees have been few and far between, leaving many questions unanswered. For example, what businesses can stay open? And when can an employee be required to go into a closed workplace during the shutdown?
The starting point for understanding how the COVID-19 shutdown affects employees lies in the regulations that the Ontario Government has passed as part of its declaration of a state of emergency. Since March 17, 2020, the Government has passed a series of regulations under the Emergency Management and Civil Protection Act which have closed different kinds of Ontario business and workplaces for different periods of time.
The main regulation enforcing the current shutdown of non-essential businesses is O. Reg. 82/20, or the “Closure of Places of Non-Essential Business” regulation. It provides that all businesses which are not listed as essential in the regulation must be closed from 11:59PM on March 24, 2020 and for as long as regulations require.
- Reg. 82/20 listed a number of types of businesses that are considered essential and which are allowed to remain open and operate as normal. This included certain kinds of retail business, such as grocery stores and gas stations; restaurants but only for the purposes of takeaway and delivery; support and maintenance services for buildings; IT and telecommunications companies; agricultural businesses, and others.
The most recent planned update to the “essential” business list will remove certain categories of business that were originally considered essential, forcing them to now close down. Workplaces which now must close include cannabis stores and producers; veterinary service providers, except those providing urgent care; automobile rental and leasing businesses; and office, hardware, and pet supply businesses. In addition, only critical construction projects are allowed to continue during the shutdown.
Any business which does not fall into one of the categories listed in O. Reg. 82/20 must generally close and remain closed until the shutdown is over. But O. Reg. 82/20 does allow for a few, narrow exceptions to this rule, including:
- A business does not need to shut down any work that can be done remotely, including shipping goods through the mail, by delivery, or for pick-up
- Employees can be required to go into a closed workplace to perform inspections, maintenance, or repairs
- Employee can still be required to go to a closed workplace in order to provide security services
- Employees can be required to temporarily attend a closed workplace to attend to “critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely”
- Employees can be required to temporarily attend a closed workplace to access materials, goods or supplies necessary for the business to operate remotely
These rules about when employees can still be required to go in to work during the shutdown can be trumped by other employee rights, however. For instance, in some circumstances, employees may have a right to refuse unsafe work due to COVID-19, depending on their individual situation, regardless of whether the workplace is considered “essential” or not.
Where employees are required to stay home because their workplace is closed by the shutdown, they may have access to certain lay-off rights, as well as to new benefit packages that both the provincial and federal government are introducing to address the impact of the pandemic. Employees looking for information on the legal options available to them because of the shutdown should contact an employment lawyer to discuss their specific circumstances.
Currently, the planned end date for the Ontario shutdown is April 17, 2020, but the Government has a lot of leeway to change this plan as long as the provincial state of emergency continues. The shutdown can be lengthened or shortened, and new categories of “essential businesses” can be added at any time to respond to the rapidly changing circumstances in the province.
[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]