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Ontario updates rules on job postings and more
Ontario has announced effective dates and supporting regulations for a number of workplace legislation changes adopted earlier this year.
Canada | Publication | July 14, 2020 - 12 PM ET
For many employers in Ontario now preparing to welcome returning employees back to the physical workplace, implementing screening measures in the workplace is undoubtedly a key area of focus. With the purpose of reasonably mitigating against COVID-19-related risks, and protecting health and safety in the workplace, such measures can be appropriate, depending on the circumstances.
In this update, we provide employers with some insightful considerations, best practices and tips surrounding the following questions:
Generally, under Ontario’s Occupational Health and Safety Act (the OHSA), employers are required to take every precaution reasonable in the circumstances to protect workers. Given the highly infectious nature of COVID-19, this obligation may include implementing reasonable screening measures to limit or prevent the spread of COVID-19 in the workplace.
The appropriateness of implementing screening or control measures to eliminate or minimize the potential for occupational exposure to transmission and/or infection will depend on the risk level of each workplace, and how that risk can be mitigated. For employers reopening or with employees returning to the physical workplace, it will therefore be crucial to carefully assess (and regularly re-assess) the level of risk in the workplace, and accordingly craft appropriate and effective risk mitigation strategies to protect health and safety. To properly navigate this exercise, using risk-mitigation tools geared specifically to employers operating within Canada, or across borders globally can prove to be particularly helpful.
Once a risk assessment is completed, it may be determined that implementing mandatory screening measures for employees entering in contact with the physical workplace is necessary and reasonable in the circumstances.
Screening employees for COVID-19 can take different forms and vary from one workplace to another depending in large part on the assessed level of risk and the employer’s available resources. As addressed in more detail below, more common screening or control measures may include mandatory self-declaration checklists, or voluntary workplace reporting programs. For workplaces assessed to be at a higher risk of transmission or infection, implementing testing measures may be appropriate.
Mandatory self-declaration checklist, or workplace policy or protocol
Screening employees based on a set list of questions or criteria is likely the most common screening measure implemented by employers to date, potentially in part because it can be rolled out and adapted relatively quickly, is generally appropriate for most at-risk workplaces, and may be conducted in different ways.
Measures in this regard could include crafting an employee self-declaration checklist, or implementing a new workplace policy or protocol that must be reviewed before physically entering or interacting with the workplace. If one of the items on the checklist or in the policy applies, employees should be trained to know not to report to the workplace that day and should not be permitted to physically access the workplace until it is safe for them to do so.
Items disqualifying an employee from entering the workplace should be limited to and focused on what is reasonably necessary to protect health and safety in the workplace, such as any out-of-country travel in the last 14 days, any COVID-19-related symptoms or at-risk interactions in the last 14 days, and any other industry-specific requirements that may apply. For further government guidance on this topic, please click here.
Voluntary self-reporting programs
Apart from Q&A measures, some employers may also consider implementing workplace voluntary self-reporting programs, through which employees may confidentially report any potential OHS risk or to a designated team of human resources and/or management professionals, in a safe and collaborative manner.
Reportable concerns could for example relate to (i) confirmed or possible cases of COVID-19 in the workplace; (ii) social distancing, personal protective wear and gear, and cleanliness measures; (iii) an expressed need for further training; or (iv) difficulties coping and related mental health challenges.
For employers with employees returning to the workplace, providing a mechanism or forum where employees are empowered to meaningfully take part and have a say in protecting health and safety in the workplace may be beneficial for a number of reasons. Indeed, programs such as these may not only serve to protect health and safety, but may also help strengthen employee morale and overall confidence that workplace health and safety is a shared, ongoing and vitally important exercise.
Temperature testing
For workplaces assessed to be at a higher risk, implementing mandatory temperature testing measures before an employee is allowed access to the workplace may be viewed as appropriate and reasonable in certain circumstances. Where it is determined that testing measures should be implemented, the prudent employer would give special consideration to the following:
Viral testing
In Ontario, employers should be extremely cautious when considering any mandatory viral testing for COVID-19. Indeed, doing so can pose a number of problematic issues, and in many cases, may not be a legally viable or sound option. Before implementing any such measures, seeking legal counsel is crucial.
In the limited situations where viral testing is done, the above-noted tips would generally be worthy of consideration. However, it is important to note that many legal requirements and considerations for viral testing differ from those related to temperature testing. Mostly importantly, in the limited scenarios where viral testing is appropriate, it is important to ensure any testing be performed by a qualified medical practitioner as understood under OHS laws, such as a registered nurse who is able and qualified to properly administer the tests and interpret the results. Unlike temperature testing, it is not appropriate to train an employee to administer a viral test.
Moreover, there are a number of further considerations that may come into play. For example, human rights considerations beyond the prohibited ground of disability may arise given the heightened level of intrusiveness that viral testing may pose. For example, depending on the facts of the case and how testing is being conducted, accommodation requests made on the basis of creed-related grounds could ask that the medical professional conducting the testing be of a certain gender.
Further, employee information gathered during testing may be subject to certain record-keeping requirements of medical information under Ontario’s Personal Health Information Protection Act, 2004 (PHIPA). Employers should inquire whether the medical practitioner will keep records of the test results in accordance with this legislation, and advise employees of the same.
Again, it must be emphasized that viral testing in Ontario will only be appropriate in very limited circumstances. On a related point, where an employer is advised of a positive COVID-19 case in the workplace, please see our publication on managing positive cases of COVID-19 in the workplace here.
In the coming months, screening measures, namely testing, will undoubtedly remain a point of focus for employers hoping for a relatively safe reopening in Ontario. While it can be expected that health and safety considerations will remain paramount throughout the summer, employers may nonetheless be faced with complex situations where competing interests such as privacy and human rights will also have to be properly weighed.
Looking forward, it can be expected that issues surrounding screening will continue to be relevant and subject to ongoing discussion. Indeed, in a relatively small timeframe, important and promising scientific advances have been made in different parts of the world, which have collectively served to better our understanding of the virus. Once the ultimate goal of finding an effective and approved COVID-19 vaccine is reached, it is a matter of time before vaccination as a screening measure becomes the next hot issue. We will keep you apprised of any new developments.
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Ontario has announced effective dates and supporting regulations for a number of workplace legislation changes adopted earlier this year.
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