Written By Katelyn Weller, Carl Cunningham and Sara Parchello

As the number of COVID-19 cases continues to rise in Ontario, Premier Ford announced on September 28, 2020, that Ontario "is in the second wave". As part of measures to flatten the curve during this second wave of COVID-19, the Ontario government has enacted a regulation that requires Ontario businesses to screen workers (including students, contractors, and volunteers) and essential visitors (e.g., delivery and maintenance personnel) before they enter the premises of the business or organization.

This change is a result of an update to O. Reg. 364/20: Rules For Areas In Stage 3 (the Regulation), which is a regulation under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. While many businesses were already screening workers and visitors as part of their COVID-19 preventative measures, for most workplaces it was not mandatory before the update to the Regulation and such screening was simply part of a list of recommendations. Now, the Regulation requires businesses to follow the recommendations of the Office of the Chief Medical Officer of Health on screening.

What is Screening?

In conjunction with the update to the Regulation, the Ministry of Health has published the COVID-19 Screening Tool for Workplaces (Businesses and Organizations). The COVID-19 Screening Tool sets out three required screening questions for all workers and essential visitors. These are:

1. Do you have any of the following new or worsening symptoms or signs? (Workers are to select "Yes" or "No" from a list of eight symptoms.)
2. Have you travelled outside of Canada in the past 14 days?
3. Have you had close contact with a confirmed or probable case of COVID-19?

Anyone who answers "yes" to one of the screening questions must be excluded from the workplace (even if the workplace is outdoors or partially outdoors) and advised that they should go home and self-isolate immediately and contact their health care provider or Telehealth Ontario for guidance on whether they need a COVID-19 test.

Interestingly, the screening requirements do not apply to customers or patrons of businesses that serve the public directly (e.g., retailers, bars, restaurants, etc.). Nonetheless, it may still be reasonable for a business to screen patrons as part of their preventative measures to ensure the health and safety of their workers.

Issues for Workplaces to Consider

First, are workers attending your physical workplace? There are no changes for workers who are working remotely or from home, but if workers are attending the workplace it will be important to have a screening process in place.

Second, consider what is an appropriate screening process for your workplace before you implement a process or modify your existing process. Your business will want to have a process that ensures that at least the three required screening questions listed in the COVID-19 Screening Tool for Workplaces (Businesses and Organizations) are asked and answered each day by workers and essential visitors to the workplace. However, the Regulation does not specify "how" the screening should be implemented. Businesses are therefore free to develop a process (e.g., email prior to attendance, completion of paper form upon attendance, on-line "app", etc) that is most efficient for their business so long as they can demonstrate, if required, that the screening is taking place as required.

Third, consider this new screening requirement as part of your overall safety protocols, including education of workers on self-screening at home, access control at the workplace to establish screening points, signage for not only workers, but essential visitors and secure handling of the screening results in a manner consistent with any applicable privacy policies. Significantly, the COVID-19 Screening Tool does not require businesses to take the temperature of workers or essential visitors, but this is a screening mechanism that many organizations have put in place and may continue to be reasonable tool for some businesses to ensure the health and safety of its workers.

Fourth, although not prescribed by the Regulation, businesses will also need to consider protocols for allowing individuals to return to the workplace after they have not passed a pre-access screen. Consider how long they will be required to stay at home and whether a negative COVID-19 test will be required to re-enter the workplace.

It is not clear how aggressively the Ministry of Labour or public health will enforce this new Regulation, but with the current increase in COVID-19 cases in Ontario we would recommend that your business immediately undertake a review of your current screening process and determine what is an appropriate way for your business to implement a practical way to comply with these new screening requirements.

If you have any questions arising out of the matters reviewed above, or require assistance in respect of screening processes for your workplace, please contact the Bennett Jones Employment Services group.

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