As we reported in our Communique on January 12, 2021, on Tuesday Premier Doug Ford announced that the Province of Ontario would be imposing a stay-at-home order effective as of midnight January 13, 2021. Only a handful of hours before the order was coming into effect, the Government of Ontario released the Stay-At-Home Order (the “Order”) and Regulation 10/21 (the “Regulation”) which sets out the amendments to the existing rules in Stage 1 of Ontario’s reopening plan.
The Order requires all individuals in Ontario to stay at home at all times. The Order provides 29 reasons individuals may leave their home, including:
- Attending work, if the nature of the work requires the individual to leave the residence, including circumstances where the individual’s employer has determined that the nature of the work requires attendance at the workplace;
- Attending school or daycare;
- Obtaining necessary goods and services from businesses which are permitted to remain open;
- Providing care or assistance to an individual who requires care or assistance, including trips out of the home;
- Protecting an individual from domestic violence or unsafe living conditions;
- Exercising outdoors, including the use of recreational facilities that are permitted to remain open;
- Attending to appearances for the administration of justice (for example, court appearances);
- Exercising an aboriginal or treaty right;
- Moving residences, buying or selling a residence or attending to a second residence (for example, a cottage) if the attendance will be less than 24 hours or at least 14 days long;
- Travelling between homes of parents, guardians or caregivers, if the individual is under their care;
- Travelling to an airport, bus station or train station for the purpose of travelling outside of Ontario;
- Gathering for weddings, funerals or religious services with a limit of 10 individuals;
- For individuals who live alone, gathering with another household; and
- Obtaining veterinary services, food and supplies for animals, and walking or exercising an animal.
The Regulation further addresses the requirement for individuals to work from home. Section 2.1(1) of the Regulation states that an employer must ensure that employees work remotely, unless the nature of their work requires them to work on-site.
The requirement for employers to ensure that employees work from home to the extent that the nature of their work permits raises many questions for businesses. Although many employees can perform work from home, some employees may not have the infrastructure to work from home (for example, they may not have Wi-Fi, a desk or a private space to work). In addition, some businesses may not have the hardware to provide to employees, or the ability for employees to connect to the business’ system from home. Neither the Order nor the Regulation address whether an employer is required to invest in appropriate infrastructure and equipment to allow employees to work from home when their job is otherwise amenable to doing so.
Premier Doug Ford’s office released a Frequently Asked Questions document (the “FAQ”) shortly after the announcement of the Order. The FAQ states that an employee who believes that he or she should be working from home can contact the Ministry of Labour to file a health and safety complaint. This direction by the Premier’s office will no doubt lead to circumstances where employees believe that the nature of their job permits them to work from home, but due to lack of infrastructure or hardware, the employer is unable to permit them to work from home. While it is difficult to speculate how the Ministry of Labour will determine such complaints from employees, it would be reasonable for employers to defend their decisions to require employees to attend work based on a lack of equipment or infrastructure, and a financial inability to invest in remote work for employees given the effect the pandemic on a business’ finances.
In the meantime, employers who will require employees to continue to attend at work should provide employees with a letter to carry with them in the event that they are questioned by police or provincial offences officers on their way to or from work.
We will continue to report on developments regarding the Order and Regulation as they occur.