Written By Carl Cunningham, Sara Parchello and Katelyn Weller

As previously reported in our March 25, 2020 posting, in the circumstances of the current public health emergency caused by the spread of the novel coronavirus the Ontario Government issued a list of categories of essential workplaces and ordered all other non-essential workplaces to close effective 11:59 p.m. on Tuesday March 24.

On April 3, 2020, the Ontario Government, following the advice of its Chief Medical Officer for Health, issued a further order under the Emergency Management and Civil Protection Act reducing the list of workplaces and services classified as essential, and ordering more classes of Ontario businesses to close as of Saturday, April 4, 2020, at 11:59 p.m. This closure will be in effect for a minimum of 14 days, with the possibility of an extension of the closure order as the situation evolves.

Issue #1: Review the Updated List to Confirm if Your Business is "Essential"

The updated, reduced list of categories of workplaces and services deemed essential as of April 4, 2020 are discussed in more detail below. It is important to understand whether your business is one that can continue in operation or must shut down during the period of the emergency order. You should take the following steps:

• First, to determine if you can lawfully continue to operate in Ontario.
• Second, if your business is not permitted to operate (see Issues #2 and #3 below), this may affect whether staff are placed on lay-off or a Declared Emergency Leave (DEL) under the Ontario Employment Standards Act, 2000 (ESA)

Teleworking and online commerce are permitted at all times for all businesses and are strongly encouraged for all businesses.

If your business is not on the updated list of essential workplaces, but you believe that it should be due to the nature of the business, Bennett Jones’ lawyers and senior public policy advisors can assist in making effective representations to the government.

Issue #2: If You are Temporarily Ceasing Operations, What is the Reason?

(i.e., is it required as a result of the Emergency Order, or due to a shortage of business?)

Are you considering a temporary cessation of operations because of (1) lack of work or (2) the perception you are not an essential business and are required to close (other than the teleworking/remote operations)? The answer is important because as per Issue #3 below, whether your business is deemed "essential" and the reason you cease to operate will affect whether staff should be placed on a temporary lay-off or a Declared Emergency Leave.

Issue #3: Temporary Lay-off vs Declared Emergency Leave Under the ESA

The answer to this question is nuanced and depends on the answers to the questions above.

If your business is not an essential business and is required to close as a result of the emergency order by the Ontario Government, your staff are likely eligible for an unpaid DEL under the ESA and they may apply for the Canada Emergency Response Benefit (CERB). For more details on the CERB, please see our CERB blog. A DEL is statutory leave and benefits should be continued during the DEL. It is anticipated that the DEL will last until the Ontario Government declares the emergency terminated. If your business would like to continue paying employees during the DEL, you may wish to consider if your business is eligible for the proposed Canada Emergency Wage Subsidy (CEWS). Please see our blog on the CEWS for more information.

If your business is not affected by the mandatory closure order but will be ceasing operations for reasons such as lack of customer/client demand, this may still be a temporary lay-off under the ESA and your staff are eligible to apply the CERB.

Careful consideration should be given to this decision.

Issuing Records of Employment

Given the unprecedented number of lay-offs and employees being put on a DEL, employers (or their payroll-service providers) will need to issue Records of Employment. A link to Service Canada's direction and a copy of the relevant excerpt are below, but the bottom line is that you if your employee is not being paid, you need to issue a Record of Employment (ROE) and the following codes should be used:

A – For layoff (i.e., lack of work)
D – For illness or injury (i.e., illness or quarantine due to COVID-19)
N – For leave (i.e., DEL in Ontario)

Details are at Employment Insurance – Record of Employment on Service Canada’s website. Here is the relevant excerpt:

When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments.

When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments.

When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.

Note that employers should seek legal advice before issuing a code E (Quit) for an employee who has engaged in a work refusal, even if the work refusal does not appear to be validly exercised.

Essential Workplaces in Ontario

Ontario’s updated list of essential workplaces and services includes, among certain others, those businesses which are deemed critical to the supply chains necessary for the production of food and healthcare supplies.

When the first list of essential workplaces was released on March 24, the Government of Ontario launched the Stop the Spread Business Information Line (1-888-444-3659) for businesses with questions about essential and non-essential workplaces. That line is still open and operating for any inquiries that businesses may have.

Essential workplaces that remain open are reminded to put in place protocols for physical distancing, regular hand-washing, and other appropriate measures in order to protect the health and safety of employees and the general public.

Here is the list of the updated categories of essential workplaces in Ontario under the new emergency Order, effective April 4, 2020, including details on each of the categories to help businesses determine whether they fall within an essential workplace or service category:

Supply chains

1. Businesses that supply other essential businesses or essential services within Ontario, or that supply businesses or services that have been declared essential in a jurisdiction outside of Ontario, with the support, products, supplies, systems, or services, including processing, packaging, warehousing, distribution, delivery, and maintenance necessary to operate.

Food

1. Businesses that primarily sell food, beverages and consumer products necessary to maintain households and businesses including:
   1. Supermarkets and grocery stores.
   2. Convenience stores.
   3. Discount and big box retailers selling groceries.
   4. Restaurants (take-out, drive-through and delivery service only).
   5. Beer and wine and liquor stores.

Services

1. Pharmacies.
2. Gas stations and other fuel suppliers.
3. Laundromats and drycleaners.
4. Security services for residences, businesses and other properties.
5. Vehicle and equipment repair and essential maintenance and vehicle and equipment rental services.
6. Courier, postal, shipping, moving and delivery services.
7. Funeral and related services.
8. Staffing services including providing temporary help.
9. Veterinary services (urgent care only) and other businesses that provide for the health and welfare of animals, including farms, boarding kennels, stables, animal shelters, zoos, aquariums and research facilities.
10. Home child care services of up to six children as permitted under the Child Care and Early Years Act, 2014, and child care centres for essential workers authorized to operate in accordance with Ontario Regulation 51/20 (Order Under Subsection 7.0.2 (4) of the Act - Closure of Establishments) made under the Act.
11. Hotels, motels, other shared rental accommodation including student residences, except for seasonal campgrounds and any pools, fitness centres, meeting rooms and other recreational facilities that may be part of the operations of these businesses.
12. Cheque cashing services.

Services to the public that are restricted to alternative methods of sale

1. Stores that sell any of the following items and provide them to the customer only through an alternative method of sale such as curb side pick-up or delivery, except in exceptional circumstances:
   1. Hardware products.
   2. Vehicle parts and supplies.
   3. Pet and animal supplies.
   4. Office supplies and computer products including computer repair.
   5. Safety supplies.

Financial services

1. Businesses that provide the following financial services:
   1. Capital markets and related securities trading and advisory services.
   2. Banking/credit union activities including credit intermediation.
   3. Insurance.
   4. Land registration services.
   5. Real estate agent services.
   6. Pension and benefits payment services.
   7. Financial services including payroll and payment processing and accounting and tax services.

Telecommunications and IT infrastructure/service providers

1. Information Technology (IT) services, including online services, software products and the facilities necessary for their operation and delivery.
2. Telecommunications providers and services (phone, internet, radio, cell phones etc.) and facilities necessary for their operation and delivery.
3. Newspapers, radio and television broadcasting.

Maintenance

1. Maintenance, repair and property management services strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings.

Transportation services

1. Businesses and facilities that provide transportation services, including,
   1. transportation services provided by air, water, road, and rail, including taxis and other private transportation providers, and
   2. support services for transportation services, including,
      1. logistical support, distribution services, warehousing and storage, truck stops and tow operators,
      2. services that support the operations and safety of transportation systems including maintenance and repairs, and
      3. marinas, but only to the extent that the marina is necessary to enable individuals to access their primary place of residence.
2. Businesses that provide and support online retail, including by providing warehousing, storage and distribution of goods that are ordered online.

Manufacturing

1. Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers, (e.g. primary metal/ steel, blow molding, component manufacturers, chemicals, etc. that feed the end-product manufacturer), regardless of whether those other manufacturers are inside or outside of Ontario, together with businesses that support and facilitate the movement of goods within integrated North American and global supply chains.

Agriculture and food production

1. Businesses that produce food and beverages, and agricultural products including plants, including by farming, harvesting, aquaculture, hunting and fishing.
2. Businesses that process, manufacture or distribute food, beverages, crops, agricultural products, animal products and by-products.
3. Businesses that support the food or agricultural products supply chains and the health and safety of food, animals and plants.

Construction

1. Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
2. Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance.
3. Critical industrial construction activities required for,
   1. the maintenance and operations of petrochemical plants and refineries,
   2. significant industrial petrochemical projects where preliminary work has already commenced,
   3. industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combatting the COVID-19 pandemic.
4. Residential construction projects where,
   1. a footing permit has been granted for single family, semi-detached and townhomes
   2. an above grade structural permit has been granted for condominiums, mixed use and other buildings, or
   3. the project involves renovations to residential properties and construction work was started before April 4, 2020.
5. Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.

Resources and energy

1. Businesses that provide and ensure the domestic and global continuity of supply of resources, including mining, forestry, aggregates, petroleum, petroleum by-products and chemicals.
2. Electricity generation, transmission, distribution and storage and natural gas distribution, transmission and storage.

Community services

1. Businesses that deliver or support the delivery of services including:
   1. Sewage treatment and disposal.
   2. Collecting, transporting, storing, processing, disposing or recycling of any type of waste.
   3. Potable drinking water.
   4. Critical infrastructure repair and maintenance including roads, dams, bridges etc.
   5. Environmental rehabilitation, management and monitoring, and spill clean up and response.
   6. Administrative authorities that regulate and inspect businesses.
   7. Professional and social services that support the legal and justice system.
   8. Government services including but not limited to policing and law enforcement, fire and emergency services, paramedics, coroner and pathology services, corrections and court services, licences and permits.

Research

1. Businesses and organizations that maintain research facilities and engage in research, including medical research and other research and development activities.

Health care and social services

1. Organizations and providers that deliver home care services or personal support services to seniors and persons with disabilities.
2. Businesses that sell, rent or repair assistive/mobility/medical devices, aids and/or supplies.
3. Regulated health professionals (urgent care only) including dentists, optometrists, chiropractic services, ophthalmologists, physical and occupational therapists and podiatrists.
4. Organizations that provide health care including retirement homes, hospitals, clinics, long-term care facilities, independent health facilities and mental health and addictions counselling supports.
5. Laboratories and specimen collection centres.
6. Manufacturers, wholesalers, distributors and retailers of pharmaceutical products and medical supplies, including medications, medical isotopes, vaccines and antivirals, medical devices and medical supplies.
7. Manufacturers, distributors and businesses that provide logistical support of or for products and/or services that support the delivery of health care in all locations.
8. Not-for-profit organizations that provide critical personal support services in home or residential services for individuals with physical disabilities.
9. Not-for profit organizations that support the provision of food, shelter, safety or protection, and/or social services and other necessities of life to economically disadvantaged and other vulnerable individuals.

The Ontario government notes that:

• For the purposes of this order, businesses include any-for-profit, non-profit or other entity providing the goods and services described herein
• This does not preclude the provision of work and services by entities not on this list either online, by telephone or by mail/delivery
• Teleworking and online commerce are permitted at all times for all businesses

Members of the Bennett Jones Employment group are available at any time to provide advice in respect of your workforce and business in the province.