The Ontario government recently amended Ontario Regulation 364/20, Rules for Areas in Stage 3, to include mandatory COVID-19 symptom screening in almost all Ontario workplaces.
In short, these amendments require Ontario employers to screen all workers (employees, contractors, agency employees, etc.) and all essential visitors for COVID-19 symptoms and to confirm they are not otherwise excluded from lawfully entering the workplace due to recent international travel or close contact with an individual who has received a confirmed or presumed diagnosis of COVID-19.
To help with compliance with the amended regulation, the Ontario Ministry of Health created a document titled, “COVID-19 Screening Tool for Workplaces (Businesses and Organizations).” According to the ministry, employers “should implement [this tool]… for any workers or essential visitors entering the work environment.” However, the Ontario Ministry of Health also cautioned that the tool “is not to be used as a clinical assessment tool or intended to take the place of medical advice, diagnosis or treatment.” The screening tool contains a number of questions to screen for symptoms of COVID-19, as well as confirmation of whether the person has traveled outside of Canada within the previous 14 days or has been in close contact (defined elsewhere as being within 6 feet for at least 15 minutes) with a person with a confirmed or probable diagnosis of COVID-19.
If an individual being screened identifies any new or worsening symptoms of COVID-19 (other than chronic symptoms or symptoms related to other known causes or conditions), traveled outside of Canada within the past 14 days, or was in close contact with a confirmed or probable COVID-19 case, employers are required to ensure that the employee does not return to the workplace. The Ontario Ministry of Health stated that “[s]creening should be performed at the start of work/the employee’s shift, before the employee enters the workplace and begins work. For essential visitors, screenings should be conducted when they arrive at the place of business.
This screening regulation does not apply to certain health care settings, “and some non-health care workplaces (e.g., congregate living settings) where existing screening is already in place.” It also does not require businesses to screen patrons entering a workplace that is open to the public (such as restaurants, grocery stores or bars) or to emergency workers responding to an emergency.
The government also noted that additional questions or screening may be appropriate in certain circumstances or in certain workplaces; however, nothing in this regulation requires any physical examination or medical testing be performed, such as temperature checks or a pre-access negative COVID-19 test.
Many employers have already established COVID-19 screening in their workforces based on their duties under the Occupational Health and Safety Act, which require (among other things) that employers take reasonable precautions to protect workers from harm. In light of the amended Ontario Regulation 364/20, employers that have not yet implemented screening protocols may want to do so. Employers may want to take demonstrable steps to screen their workers and essential visitors, since inspectors from the Ontario Ministry of Labour, Training and Skills Development or public health agencies could demand proof that screening has been implemented in the workplace.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.