In response to the recent increase in COVID-19 cases in Ontario, the province has imposed health screening obligations
by Rhonda B. Levy, Barry Kuretzky, and George Vassos
In response to the recent increase in COVID-19 cases in Ontario, the province has imposed health screening obligations on employers. On September 25, 2020, the province’s government filed Regulation 530/20, which was made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. Effective September 26, 2020, Regulation 530/20 amended Regulation 364/20: Rules for areas in Stage 3, as follows:
The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health on screening individuals.
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On September 25, 2020, the Ministry of Health issued Recommendations for screening (Version 1) (Recommendations). The Recommendations were made available in a News Release the government distributed on the same date. Although a “recommendation” is generally advisory only, the Recommendations are mandatory given the use of the word “shall” in Regulation 530/20. The Recommendations indicate that the screening must be implemented for the following individuals entering the work environment:
- Any workers (i.e., staff, including students, contractors or volunteers that conduct business or related activities) upon entry to the workplace at the beginning of their day or shift; or
- Essential visitors (i.e., individuals providing a service in the establishment who are not employees or patrons, e.g., delivery, maintenance, contract workers) upon arrival.
The Recommendations also indicate that screening should not be implemented for:
- Patrons entering a workplace (e.g., customers entering a grocery store, restaurant, bar or other food or drink establishment) and
- Emergency service providers or first responders entering a workplace for emergency purposes.
The Recommendations include three adaptable, required COVID-19 screening questions that must be asked before individuals are permitted to enter the workplace. If an individual answers NO to all three questions, they will pass the screening and be permitted to enter . If they answer YES to any of the three questions, they will not pass the screening and should be advised that they cannot enter (including an outdoor workplace). Individuals who do not pass should immediately self-isolate and contact their health care provider or Telehealth Ontario to determine if they need a COVID-19 test.
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In addition to mandatory screening, Regulation 530/20 also requires that restaurants, bars and other food and drink establishments:
- Prohibit the sale of alcohol after 11 p.m.;
- Prohibit the consumption of alcohol (including by employees) after 12:00 a.m. until 9:00 a.m.; and
- Close by 12:00 a.m. and remain closed until 5:00 a.m. except for takeout and delivery.
Regulation 530/20 also requires all strip clubs across Ontario to close.
Bottom Line for Employers
Employers in Ontario must immediately put the screening questions described in the Recommendations to all workers and essential visitors to determine if they should be permitted to enter their workplaces. While the Recommendations provide the required pre-entry screening questions, neither the Recommendations or Regulation 530/20 provide guidelines for how the screening process should be implemented. As a result, an employer has the freedom to implement the process in a manner that best suits the employer’s unique workplace in accordance with the employer’s obligations under the health and safety legislation and in light of the input from a joint health and safety committee or a health and safety representative at the workplace.
The following are suggestions for implementing the new mandatory pre-entry screening requirement:
- Disseminate a communication to workers and known essential visitors about the requirement, which should include details about the manner in which the screening will be implemented in the workplace;
- Request that workers and essential visitors self-screen at home by answering the three required COVID-19 screening questions that appear in the Recommendations, and that they refrain from coming to the workplace if they answer yes to one of the questions and therefore do not pass the screening;
- Identify the entry spot where workers and essential visitors access the workplace and where the screening will occur, and advise workers and known essential visitors of its location;
- Erect an easily visible sign notifying workers and essential visitors that it is the location where mandatory screening will occur;
- Explain the screening process to individuals who will be conducting screening and ensure that they follow the process; and
- Keep careful records to demonstrate that the employer has satisfied the mandatory screening requirement so that, if called upon to do so by a government authority, the employer will be in a position to prove compliance.