Ontario declares a second emergency, issues a stay-at-home order, and amends COVID-19 rules for individuals and businesses

Key legal instruments 

• O. Reg. 11/21, Stay-at-Home Order, under the Emergency Management and Civil Protection Act
• O. Reg. 10/21, Rules for Areas in Stage 1, under the Reopening Ontario Act
• O. Reg. 82/20, Rules for Areas in Stage 1, under the Reopening Ontario Act 

Key take-aways

• O. Reg. 10/21 and O. Reg. 82/20 are the legal authorities for determining whether a business in Ontario can serve the public and operate from its physical workplace at this time.
• Even if a business is permitted to serve the public and operate from its physical workplace at this time, Ontario’s stay-at-home order, O. Reg. 11/21, requires that individuals in the province remain home at all times, unless leaving home is “necessary.”
• Under O. Reg. 11/21, individuals can leave their place of residence for “work” where the nature of the work “requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.”
• It is not necessarily true that all workers in businesses that are permitted to serve the public and operate from their physical workplaces are “necessary” at the physical workplace, and businesses must allow workers to work remotely where they are not “necessary” at the physical workplace.
• Employers should document which workers are “necessary” at the physical workplace and why they are necessary, and should communicate this information to its workers. Employers should err on the side of caution when assessing whether a worker is “necessary” at the physical workplace.
• Employers should implement and revise any existing workplace policies and safety plans in light of more stringent rules on face covering use and physical distancing in the workplace.
• Businesses, particularly big box stores, should expect increased workplace inspections.
• Businesses required to close or significantly restrict services due to government-imposed COVID-19 restrictions should explore whether funding may be available under the Ontario Small Business Support Grant (for businesses with 100 or fewer employees) or other programs. 

Stay-at-home order

On January 12, Ontario declared a second emergency under the Emergency Management and Civil Protection Act. The province then issued a stay-at-home order under the Act, O. Reg. 11/21, which–as of January 14 at 12:01 a.m. EST–requires every individual in the province to “remain in their place of residence at all times unless leaving their place of residence is necessary.” 

Individuals may only leave home for “work” where the individual’s work requires attendance at the workplace, a determination made by the individual’s employer

The stay-at-home order imposes rules on individuals themselves. While individuals must remain home at all times, the order enumerates situations when individuals are permitted to leave home. Most notably for businesses, individuals can leave their place of residence for “work” where, under s. 1 (1) 1. of Schedule 1:  

the nature of the work or volunteering requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.

Some businesses are not permitted to serve the public from their physical workplace or have workers work from the physical workplace as a matter of law
 
While the stay-at-home order imposes rules on individuals themselves, some businesses and workplaces are not permitted to serve the public from their physical workplace or have workers work from the physical workplace under O. Reg. 10/21 and O. Reg. 82/20, Rules for Areas in Stage 1, of the Reopening Ontario (A Flexible Response to COVID-19) Act. Section 1 (6) of Schedule 1 of the stay-at-home order, O. Reg. 11/21, states that, “Nothing in this Order permits a business or place to be open if it is required to be closed under the Stage 1 Order.” 

In short, even if an employer determines a worker’s attendance in the physical workplace is necessary under the stay-at-home order, this determination would not necessarily allow the business to serve the public and have workers attend the physical location if such permissions are not equally recognized in O. Reg. 10/21 and O. Reg. 82/20, Rules for Areas in Stage 1. 

Amended rules for stage 1 

As noted above, in addition to the stay-at-home order in O. Reg. 11/21, Ontario amended its “Rules for Areas in Stage 1” as of January 14 at 12:01 a.m. EST. See O. Reg. 10/21 and O. Reg. 82/20, Rules for Areas in Stage 1, for COVID-19 rules and restrictions for both businesses and individuals. 

These instruments address issues such as: 

• which businesses are essential and permitted to serve the public from their physical locations
• which businesses must close their physical locations to the public
• hours of operation and capacity limits for businesses in different sectors
• gathering and physical distancing rules, and
• face covering rules.

As of January 14 at 12:01 a.m., some major changes brought by O. Reg. 10/21 under the Reopening Ontario Act include the following:  

Face coverings are required in the indoor premises of businesses by every individual
 
O. Reg. 10/21 amends O. Reg. 82/20 as follows: 

3.1 (1) Every person in the premises of a business or organization that is open shall ensure that they wear a mask or face covering in a manner that covers their mouth, nose and chin during any period in which they are in an indoor area of the premises, unless they are subject to an exception set out in subsection 2 (4).

(2) Every member of the public in a place of business or facility that is open to the public shall maintain a physical distance of at least two metres from every other person, except from their caregiver or from members of the person’s household.

(3) The physical distancing described in subsection (2) is not required,

(a) where necessary to complete a transaction or to receive a service, if the member of the public wears a mask or face covering in a manner that covers their mouth, nose and chin or is subject to an exception set out in subsection 2 (4);

(b) when passing one another in a confined location, such as in a hallway or aisle, if the member of the public wears a mask or face covering in a manner that covers their mouth, nose and chin or is subject to an exception set out in subsection 2 (4); and

(c) in situations where another provision of this Order expressly authorizes persons to be closer than two metres from each other.

All non-essential retail stores, including hardware stores, alcohol retailers, and those offering curbside pickup or delivery, must open no earlier than 7 a.m. and close no later than 8 p.m. The restricted hours of operation do not apply to stores that primarily sell food, pharmacies, gas stations, convenience stores, and restaurants for takeout or delivery

O. Reg. 10/21 amends O. Reg. 82/20 to require that non-essential retail stores, as specifically defined, open no earlier than 7 a.m. and close no later than 8 p.m., and may not deliver goods to patrons outside of those hours. Generally, whether a retail business is deemed non-essential is fact specific.

Non-essential construction is further restricted

O. Reg. 10/21 amends O. Reg. 82/20 to narrow which construction activities are permitted at this time. 

The construction activities enumerated in O. Reg. 10/21, constituting s. 43 of Schedule 2, “BUSINESSES THAT MAY OPEN,” of O. Reg. 82/20, are permitted at this time. Review the entire enumerated list as it is set out in O. Reg. 10/21. Whether a construction activity is captured by the enumerated list will depend on the particular circumstances. Businesses involved in construction activities should expressly document why their activities are permitted under O. Reg. 10/21 and O. Reg. 82/20 if they continue operate. These businesses should also be mindful of respecting gathering limits, physical distancing rules, and face covering rules, among others, as they are set out in O. Reg. 10/21 and O. Reg. 82/20. Where a business’ construction activities are not captured by the enumerated list, they are currently not permitted. 

Expiry of the stay-at-home order 

Ontario’s stay-at-home-order is expected to remain in effect until at least February 11. The rules under the Reopening Ontario Act can be modified by regulation as COVID-19 infection numbers in the province improve or worsen.