Toronto Announces Reporting Obligation and Enhanced Measures for Employers

Toronto Announces Reporting Obligation and Enhanced Measures for Employers

Citing rising cases in the city and increased strain on hospitals, the City of Toronto has enacted further measures to fight COVID-19, which include new requirements for employers. Toronto’s Medical Officer of Health issued a Letter of Instruction[1] (the “Instructions”) on Monday January 4, 2021, setting out requirements for employers permitted to be open during the city’s lockdown, now in its sixth week.

The Instructions, which are effective immediately, include the following:

1. Reporting Obligations. Employers must immediately notify Toronto Public Health (“TPH”) as soon as they become aware of two or more people who test positive for COVID-19 within a 14-day interval in connection with the workplace. If two or more do people test positive, employers must:
   1. Provide contact information for a designated contact person at the workplace and ensure that person is readily available to communicate with TPH;
   2. Ensure that accurate and updated contact information for all workers is available to be produced to TPH within 24 hours of request in support of contact tracing;
   3. Notify the Ontario Ministry of Labour, Training, and Skills Development; and
   4. Cooperate with infection prevention and control personnel from TPH, including allowing entry into the workplace for inspection.
2. Workplace Measures. All employers must ensure the following infection prevention measures are being taken:
   1. Ensure hand sanitizer and hand-washing facilities are provided in work and rest areas;
   2. Implement rigorous and frequent environmental cleaning in all high-touch areas and areas accessible to the public;
   3. Conduct or have the property owner or landlord conduct a regular review of HVAC systems to ensure they are functioning well;
   4. Minimize instances of more than one individual in a vehicle for driving associated with work;
   5. Ensure that two metre physical distancing of workers takes place throughout the workplace, including during eating and rest periods; and
   6. Install one-way walkways to reduce close physical interactions and implement physical barriers, such as plexiglass, when physical distancing is not possible.
3. Income Replacement Awareness. Employers must ensure that all employees are aware of income replacement and workplace-related benefits they are entitled to if they have to isolate due to symptoms of COVID-19, being tested for COVID-19 or being a close contact of someone with COVID-19.

In addition, TPH will begin to publish a list of businesses that have reported outbreaks, which will be updated weekly on the city’s website. Businesses will only be published where there is “sustained transmission” and “the workplace is large enough that the risk of privacy concerns are mitigated”. The new requirements will also not apply to schools or school boards, licensed child care programs, health care providers or healthcare entities.

Takeaways for employers

The most significant new requirement for employers will be the duty to immediately notify TPH following two or more confirmed cases, as well as TPH’s publishing of workplace outbreaks. While city council has been asking the Medical Officer of Health to publish workplace outbreaks since September, privacy concerns have stalled such requirements until now, and the city had instead only reported workplace outbreaks if a public health risk was identified.

The Instructions seek to address these privacy concerns by exempting smaller employers where publication would create a privacy risk. However it remains to be seen exactly what size of employer will be able to rely on this exemption and the level of detail the city plans to publish about each outbreak.

Employers in Toronto should prepare themselves by ensuring that they have reviewed their current workplace measures against the city’s most recent requirements. Employers should have a system in place to immediately notify TPH if two or more cases are reported in the workplace, designate an individual to communicate with TPH in the case of an outbreak, and ensure proper record keeping in order to assist with contact tracing.

[1] The Instructions are made pursuant to section 2(2) of Schedule 1 to Ontario Regulation 82/20: Rules for Areas in Stage 1 made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020 c. 17.

by Dave J.G. McKechnie and David Fanjoy

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2021