Canada: New Stage 3 Screening Measures For Ontario Employers Now In Effect

New screening recommendations and other changes to the province's Stage 3 rules are now in effect for provincially regulated employers in Ontario. While the extent to which the new screening recommendations are mandatory for all Ontario employers remains unclear, the government has strongly indicated that they should be followed province-wide. These measures include a list of questions that should be asked before a worker or essential visitor is allowed entry to the physical workplace.

Changes to Stage 3 rules

On September 26, amendments toO'Reg 364/20: Rules for Areas in Stage 3 (Regulation) came into force. In a press release issued on September 25, 2020, the Ontario government explained that the amendments to the Regulation are intended to “reduce the risk of transmission, and limit future outbreaks of COVID-19.” Specifically, the amendments to the Regulation:

• apply additional measures and restrictions to restaurants, bars and other food and drink establishments (including nightclubs) by prohibiting the sale of alcohol after 11 p.m., and prohibiting the consumption of alcohol on the premises after 12:00 a.m. until 9:00 a.m. (including employees), and requiring establishments to close by 12:00 a.m. and remain closed until 5:00 a.m. except for takeout or delivery;
• close all strip clubs across the province; and
• require businesses or organizations to comply with any advice, recommendations, and instructions issued by the Office of the Chief Medical Officer of Health on screening for COVID-19.

Recommended screening measures

New Screening Tool for Workplaces in Ontario

In the Ford government's press release, the term “recommendations” is hyperlinked to the Ministry of Health's Screening Tool for Workplaces (Businesses and Organizations). This tool provides basic information only and contains recommendations for businesses or organizations for COVID-19 screening under the Regulation. Specifically, it contains:

• a list of questions that, “at a minimum, […] should be used [by employers] to screen individuals for COVID-19 before they are permitted entry into the workplace (business or organization).”
• information on how to analyze the workers' answers;
• how to make a decision on whether the workers can enter the physical workplace, based on the answers they provided; and
• links to further government-issued guidance materials on COVID-19 in Ontario.

In addition, employers should take careful note that:

• The tool is not a replacement for clinical assessments, medical advice, diagnosis or treatment. 
• They must also meet all obligations under the Occupational Health and Safety Act. Here, employers should keep in mind that in some cases, it is possible that while the implementation of additional screening measures is not currently mandated under the Regulation or the Ministry of Health's tool, it may in certain circumstances be required under the OHSA. 
• The tool is not legal advice.

Who to screen?

Q&A screening should apply to:

• Any workers. This refers to staff and is intended to include students, contractors or volunteers that conduct business or related activities where applicable and appropriate.
• Essential visitors entering the work environment. These include individuals providing a service in the establishment who are not employees or patrons of the establishment (e.g., delivery, maintenance, contract workers). However, the tool states that essential workers who travel outside of Canada for work purposes should not be excluded entry on this basis alone.

Q&A screening does not apply to:

• Patrons entering a workplace (e.g., customers entering a grocery store, restaurant, bar or other food or drink establishment). 
• Emergency services or other first responders entering a workplace for emergency purposes. 

Q&A screening recommendations may not apply to:

• health care settings; and
• some non-health care workplaces (e.g., congregate living settings) where existing screening is already in place.

When to screen?

The tool directs employers to screen workers before they are permitted entry to the physical workplace, at the beginning of their day or shift. Screening also applies to essential visitors when they arrive. 

The tool does not specify whether or not the same employees should be subject to screening every time they enter the workplace. That said, the tool does state that it “may be adapted based on need and the specific setting.”

Take-aways

Certainly, all employers are strongly recommended to apply the new screening measures if they are not already required to do so under the OHSA, and they are free to adapt them to meet the realities of their workplace. 

While the implementation of screening measures in the workplace may seem obvious to some, there are some aspects to this exercise that the Regulation falls short of addressing. For example, the recommendations do not include any guidance on whether employees can be required to answer the screening questions, and what consequences could be appropriate should an employee refuse to do so. Moreover, apart from establishing seemingly “minimal standards” on Q&A screening measures for Ontario employers, the Regulation does not currently contemplate the implementation of any additional forms of screening measures, like temperature taking or COVID-19 testing. 

Depending on how Ontario fares during this officially declared “second wave of COVID-19,” Ontario's health authorities may very well be issuing further advice, instructions or recommendations under the Regulation in the coming weeks and months. It will be important for employers in Ontario to carefully monitor potential government guidance and announcements in this regard, keeping in mind that changes to Stage 3 rules can happen quickly, with a limited head's up.

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