On March 23, 2020, the Government of Ontario ordered the mandatory closure of all non-essential workplaces effective March 24, 2020 at 11:59 p.m. On April 3, 2020, in response to the advice of Ontario’s Chief Medical Officer of Health, the government reduced its original list of essential workplaces that can remain open. By 11:59 p.m. on Saturday, April 4, 2020, businesses that are not identified on the revised list must close. This closure will be in effect for 14 days, with the possibility of an extension as the situation evolves. The government’s purpose in adding these restrictions is to further reduce contact between people and stop the spread of COVID-19.

Some of the most significant changes include:

Curbside Pick-up or Delivery for Stores

Persons responsible for a place of business that engages in retail sales are obligated to restrict public access to the place of business to the fullest extent possible by providing alternative methods of sale such as curbside pick-up or delivery.  Exceptions are pharmacies and retail businesses that primarily sell food and beverages.  

Stores that sell the following items now must provide them to the customer only through an alternative method of sale such as curbside pick-up or delivery, except in exceptional circumstances:

• Hardware products.
• Vehicle parts and supplies.
• Pet and animal supplies.
• Office supplies and computer products including computer repair.
• Safety supplies.

Construction Projects Limited

Non-critical construction and services must cease operations at 11:59 on April 4, 2020. Only the following construction projects will be permitted to continue:

Critical Construction Projects

• Construction associated with the healthcare sector (including new facilities, expansions, renovations and conversion of spaces to healthcare spaces).
• Construction associated with critical provincial infrastructure (including transit, transportation, energy and justice sectors beyond the day-to-day maintenance).
• Critical industrial construction required for:
  
  • Petrochemical plants and refineries.
  • Significant petrochemical projects where preliminary work has already commenced.
  • Industrial construction and modifications to existing industrial structures limited to work needed to produce, maintain or enhance products directly related to combatting COVID-19 (e.g., Personal Protective Equipment, ventilators).

Certain Residential Construction Projects

Residential construction projects are allowed to proceed where (a) a specified permit has been granted, or (b) the project involves renovations and construction work started before April 4, 2020.  (New residential construction projects will not be started.)

Construction Activities to Close Inactive or Paused Construction Sites

Construction and maintenance activities necessary to temporarily close inactive or paused construction sites and to ensure ongoing public safety are permitted.

Cannabis Stores and Cannabis Producers Must Cease Operations

Cannabis stores and cannabis producers are no longer essential businesses; they must cease operations at 11:59 on April 4, 2020.

Obligations of Persons Responsible for Businesses Permitted to Remain Open

Persons responsible for places of business that are permitted to remain open have specified obligations.  Some of the most significant obligations are:

• To ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act (and the regulations made under it); and
• To operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

Bottom Line for Employers

Employers are encouraged to study the new restricted list of essential workplaces to consider whether their businesses must now close.  Businesses that may no longer remain open should bear in mind that teleworking, online commerce and other innovative ways of working remotely are permitted at all times and strongly encouraged for all businesses.  

Furthermore, employees of businesses and service providers that are no longer identified as an “essential service” are now entitled to an unpaid job-protected Declared Emergency Leave from their employment. Many employers have temporarily laid off their employees or are considering it.  It is important for employers to consider how the new job-protected Declared Emergency Leave operates in the context of a layoff. This assessment will involve a complex analysis that should be conducted with the support of a knowledgeable legal advisor.