NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

On March 23, 2020, the Government of Ontario issued a News Release announcing that:

• It will order the mandatory closure of all non-essential workplaces effective as of March 24, 2020 at 11:59 p.m.;

• Essential services may continue their operations to maintain supply chains and ensure the people of Ontario have access to necessities, including groceries, medicines and other essential products; and

• This closure will be in effect for 14 days with the possibility of extending it as the situation evolves.

Essential Services

The following businesses and service providers have been identified by the Ontario government as “essential services.” All other businesses must close as of 11:59pm on March 24, 2020. The provision of work and services online, by telephone, or by mail/delivery is not inhibited by this order. Teleworking and online commerce are permitted at all times for all businesses. 

Supply chain operations: any business that supports or supplies other essential businesses or essential services, including processing, packaging, distribution, delivery and maintenance necessary to operate.

Retail and wholesale supplying essentials: grocery stores, supermarkets, convenience stores, pet food and supply stores, hardware stores, safety supply stores, office supply stores, pharmacies, and sellers and producers of beer, wine, liquor, and cannabis.

Transportation: gas stations; vehicle repair and dealerships; taxis and private transportation necessary for activities of daily living; air, water, road and rail transportation, and businesses that provide the materials and services for the operation, maintenance and safety of those systems; truck stops and tow operators.

Hospitality: restaurants and food facilities providing delivery and takeaway, food delivery services, hotels, motels, shared rental units and similar facilities including student residences.

Institutional, residential, commercial and industrial maintenance: support and services for the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings (e.g., cleaning and janitorial services, security, fire safety and sprinklers, maintenance and repair technicians, plumbers, electricians, property management and similar service providers).

Telecommunications and IT infrastructure: businesses supporting or providing information technology, and telecommunications services (phone, internet, radio, cell phones), and support facilities.

Manufacturing and production: businesses that extract, manufacture, process and distribute goods, products, equipment and materials; businesses that manufacture inputs to other manufacturers; and businesses that support and facilitate the two-way movement of essential goods within integrated supply chains.

Agriculture and food production: businesses that produce food, support the food supply chain, and support food safety; support or provide veterinary services; and businesses that ensure safe and effective waste management.

Construction: construction projects and services related to healthcare sectors; those required to ensure safe and reliable operation of critical infrastructure (transit, transportation, energy and justice sectors, beyond day-to-day maintenance); work in the industrial, commercial, institutional and residential sectors; and work supporting health and safety environmental rehabilitation projects.

Financial activities: capital markets, banking, credit unions, insurance, and businesses that provide pension, employee benefits, and payment processing services.

Resources: businesses that ensure the global continuity of mining materials and products, forestry, petroleum and petroleum by-products, and aggregates supporting critical infrastructure repairs and emergency response requirements; and businesses that provide chemicals and gases to support natural resource sector analytical labs, and drinking water and wastewater sectors.

Environmental: businesses supporting environmental management/monitoring and spill clean-up and response.

Utilities and community services: including businesses that support the provision of utilities and community services (including waste collection, potable drinking water, electricity, natural gas, road construction and maintenance, police, fire and emergency services, corrections and courts services, and other government services such as licenses and permits), and businesses engaged in supporting the operation, maintenance and repair of critical infrastructure.

Communications: newspapers, radio and television, and telecommunications.

Research: businesses and organizations that maintain research facilities and engage in research, or those that provide products and services in support of research.

Health Care and Seniors Care and Social Services: home care services; retirement homes; personal support services; long-term care facilities; independent health facilities; laboratories; manufacturers, distributers and sellers of pharmaceutical products and medical supplies; businesses that provide support to the delivery of health care in all locations, or products or services that support the health sector; businesses that sell, rent or repair medical and assistive devices and supplies; health care professionals; not-for-profit organizations that provide critical personal support services; and all other businesses and organizations that support the provision of food, shelter, safety or protection, and/or social services and other necessities of life to economically disadvantaged and other vulnerable individuals.

Justice sector: professional and social services that support the legal and justice system.

Other businesses: rental and leasing services; mailing, shipping, courier and delivery services; laundromats, dry cleaners and laundry service; professional services (lawyers, paralegals, engineers, accountants, translators); funeral, burial and related services; land registration, real estate, and moving services; security services; staffing services; businesses that support safe operations of residences and essential businesses; businesses that provide for the health and welfare of animals; child care services for essential workers, and home child care services for less than 6 children; cheque cashing services; and organizations that regulate and inspect businesses.

Bottom Line for Employers

As we have noted, in response to the escalating COVID-19 crisis, on March 17, 2020, the Government of Ontario declared an emergency under the Emergency Management and Civil Protection Act (EMCPA).  Two days later, Ontario’s Legislature held an emergency session in which it immediately enacted the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (Bill 186). Bill 186 amends Ontario’s Employment Standards Act, 2000 to create the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies. This new leave covers two separate emergency situations in which an employee may be on unpaid leave from work: Declared Emergencies and Infectious Disease Emergencies. 

Employees of businesses and service providers that the government did not identify as an “essential service” are entitled to an unpaid job-protected Declared Emergency Leave from their employment.  Many employers have temporarily laid off their employees or are considering it.  It is important for employers to consider how the new job-protected Declared Emergency Leave operates in the context of a layoff.  This assessment will involve a complex analysis that should be conducted with the support of a knowledgeable legal advisor.