Ontario continues to see increasing numbers of COVID-19 cases in what may be a second wave of the virus.  As a result, on Saturday, September 26, 2020, pre-entry COVID screening of all workers and “essential visitors” became mandatory for all businesses in Ontario – effective immediately- regardless of sector. 

The new requirement comes through an amendment to Ontario Regulation 364/20, the “Rules for Areas in Stage 3”, which is a regulation under the Reopening Ontario(A Flexible Response to COVID-19) Act, 2020.  To be clear, the new screening requirement does not include temperature testing and does not apply to customers or patrons of businesses that serve the public directly (e.g. retailers, hospitality, etc.).

Prior to the amendment, pre-entry screening was not mandatory for all workplaces.  Some workplaces may have used it as a reasonable preventative measure and others, subject to an order from the Medical Officer of Health (the head of the local public health unit) under the Health Protection and Promotion Act, were required to implement screening as part of continuing operations.

The amendment making pre-entry screening mandatory reads as follows:

2(3)      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.

The Chief Medical Officer of Health (“CMO”) for Ontario has published recommendations relating to screening.  While, normally, recommendations do not create requirements, the “recommendations” are, effectively, mandatory because the regulation directs that businesses “shall” be operated in compliance with them.

The recommendations identify the questions to be asked as part of the screening process and the parties that are to be screened.  The CMO indicates that screening should include all employees, contractors, students and volunteers (essentially anyone coming to the workplace to perform work).  It also requires screening of “essential visitors” who are people that are not employees but provide a service in the workplace.  The recommendations identifies contract workers, and delivery and maintenance personnel as examples of “essential visitors”.

There are three questions that are to be answered and anyone who answers “yes” to any of the questions is to be excluded from the workplace (even if working outdoors).  The excluded person is to be advised to contact their health care provider or Telehealth Ontario for guidance on whether they need a COVID-19 test.

What Does it Mean for Ontario Businesses?

There are no changes with respect to workers who are working from home.  However, all businesses that workers are attending are required to establish some method of pre-entry screening for COVID-19 symptoms and exposure risks.  However, the regulation and the CMO’s recommendations do not set requirements for implementation of the pre-entry screening.  Employers, constructors, and property owners, therefore, have some flexibility to implement the screening in a manner that is as efficient as possible for the workplaces for which they are responsible.  What will be key is to ensure that the screening is taking place (as a measure to protect the workplace) and that the implementation of the screening is demonstrable in case it must be proven to a regulator (most likely public health or the Ontario Ministry of Labour, Training and Skills Development). Although not addressed by the Regulation or CMO, employers will also be required to assess what is appropriate and acceptable to permit anyone “screened out” to return to work at the workplace, or enter again on another date. In each case proof acceptable to the employer, that the person has tested negative, or has acceptable public health or medical clearance, ought to be requested. 

Compliance measures that may be considered could include:

• Establishing a screening point at the workplace;
• Establishing a system of self-screening for workers;
• Workplace signage;
• Communication processes regarding pre-entry screening; and
• Verification processes to confirm that screening is taking place as required.

The precise implementation system used by the employer, constructor or property owner should depend on the circumstances of the involved workplace.  The system used at one workplace may not be appropriate or reasonable at another.  The kinds of circumstances to be considered could include:

• The number of workers attending at the workplace each day;
• The number of employers working at the workplace;
• The means of communication with workers; and
• How workers access the workplace.

Immediate, vigorous enforcement of the new requirement seems unlikely.  However, enforcement could come as time passes and, in particular, if a gap in screening is identified as part of an investigation of a COVID-19 case in the workplace.  Given the recent increase in cases in Ontario, the chance of a COVID-positive worker being in the workplace appears to be increasing.  Therefore, those responsible for workplaces would be well advised to immediately take steps to implement a pre-entry screening system and to ensure screening is taking place.

If you have any questions about this matter, other COVID-19 related issues, or would like any other workplace law assistance, please contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.