LeClair & Associates Newsletter: March 14, 2022

NEW: Further COVID-19 restrictions to be lifted during March, 2022

• The Government of Ontario has announced that as of March 21, 2022, it will lift masking requirements in most settings, with the exception of public transit, long-term care, retirement, and congregate healthcare settings.
• Regional By-Laws: Despite the above, certain local health units are still recommending that individuals wear masks and as such, employers should check their local / regional masking by-laws, to determine whether these will be continued beyond March 21, 2022, albeit temporarily.
• Provincially however, it has been made clear that masking beyond March 21, 2022, will be voluntary and most by-laws throughout the Pandemic have simply followed these Provincial mandates.
• Employee Screening and Safety Plans: Additionally, all regulatory requirements for businesses, including active & passive screening, as well as safety plans will no longer be required, effective March 21, 2022, although the recent announcement makes it clear that employers could still require masking / screening should they so choose. Where this does happen, we would suggest that there be reasonable and legitimate grounds for doing so.
• Directive 6 which gave rise to certain vaccination and policy requirements in Public Hospitals (under the Public Hospitals Act), Home Care and Community Service Providers (under the Home Care and Community Services Act) as well as Local Health Integration Networks (under the Local Health System Integration Act) and finally Ambulance Services – will also be ending today, March 14, 2022.
• What does this mean for your business? In response to these developments, employers should start to consider the utility and reasonableness of their workplace vaccination, masking, and screening policies, and whether these policies should, in a particular workplace context, continue to be enforced on a voluntary basis and if so, for how long.
• New Isolation Requirements were also announced on March 9, 2022, and going forward, fully vaccinated individuals will only need to isolate for five (5) days following the onset of symptoms and provided these have resolved or improved for at least 24 hours before returning to work. Isolation periods for unvaccinated individuals remains at ten (10) days from the last exposure or if immunocompromised.
• Close Contacts - not living together and not experiencing symptoms, regardless of whether vaccinated or not, are no longer required to isolate, provided the individual continues to monitor their symptoms for ten (10) days and wears a mask where necessary. In the case of close contacts that do live together, household members do not need to self-isolate, provided they have either:
  • Tested Positive for COVID-19 in the last 90 days.
  • Are over 18 and received their booster dose; or
  • Are under 18 and fully vaccinated.
• Household members living together who do not meet the above three criteria will still be required to self-isolate as per the prior isolation requirements set out in the March 9, 2022, announcement and accessible here.

Disconnecting from Work Policies – lets weigh in further on what’s “floating” around out there…

• We have previously written on the ‘Right’ to "Disconnect from Work Policy”, required by a recent amendment to the Employment Standards Act (ESA) and until recently, very little was known about what exactly these kinds of policies should say. Fortunately, employers with more than 25 employees will have until June 2, 2022, to implement this policy and we still expect Regulations to be published that will further clarify the expectations and enforcement around these.
• New: Recently, the Ontario Ministry of Labour, Training and Skills Development published online ‘Guidelines’ in their “Your Guide to the Employment Standards Act”, which although helpful, does not yet constitute legislation or the Regulations that we anticipate still receiving. Furthermore, and although helpful, these ‘Guidelines’ are not presently law and the online resources referencing these ‘Guidelines’ should be understood in this context. As such, we are suggesting that employers continue to hold off on publishing any policies until more is known - legally.
• It is also worth mentioning that a 2021 Superior Court decision that relied upon an interpretation contained in these “Guidelines” (and around temporary layoffs), was subsequently ruled as being wrongly decided and therefore not followed by a subsequent Court. That decision is currently on appeal and therefore until further legal developments are made known, these guidelines should only be used as their title suggests.
• Under the ‘Guidelines’ are employees entitled to insist on a “Disconnecting from Work Policy” as a matter of ‘Right’: Seemingly yes, in relation to the existence and passing of a policy that complies with the ESA however, the guidelines at this early stage do not require the creation of any new right to disconnect from work, as these are already established through other ESA “requirements” such as maximum hours or work, overtime limits and provisions requiring hours free from work. Employers should therefore look to communicate their corporate communication culture and any other expectations around after-hour responses and/or setting out-of-office notifications so that other employees, customers, and clients are made aware of the employee’s temporary unavailability.
• Enforcement: Given the right/obligation to have a policy in place by June 2, 2022, the Employment Standards Branch will likely have the power to require that an employer pass such a policy and will probably follow their usual enforcement mechanisms.
• What other aspects do the ‘Guidelines’ cover: The Guidelines also provide mechanisms for calculating the 25-employee threshold, how to deal with multiple locations and what happens if the number of employees fluctuate throughout a given year. The full text of the Guidelines can be accessed here.

Written by Ayushi Dave and Nic Preston For specific questions, please feel free to reach out to us directly at – [email protected]