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Liability Considerations in Reopening Businesses in Ontario

May 14th, 2020
Nancy Sarmento Barkhordari
JD Barrister & Solicitor

On April 27, 2020, Premier Doug Ford cautioned Ontarians to “get ready” for re-opening the economy, as new cases of COVID-19 continue to decrease. This news comes over a month after Ontario’s declared state of emergency, where the government ordered all non-essential businesses to close until further notice. With over 1 million Canadians either laid off or deemed unemployed in March alone, a significant amount of Ontarians have essentially been confined to their homes.

What Does Reopening the Economy Mean For Businesses?

While talk of re-opening the economy is undeniably positive news for many businesses, the process of re-opening may not mean business as usual. With Ontario still being far from free of the coronavirus, most companies will need to be on high alert. Businesses will need to develop best practices and policies aimed at protecting workers, patrons, and customers from exposure to COVID-19 in the workplace/business place.

Under Ontario Law and the Occupational Health and Safety Act (OHSA), employers have a duty to keep workers and the workplace safe and free of hazards. Failure by an employer to comply with the OHSA and its regulations could result in a stop-work-order upon inspection by the Ministry of Labour. This has the potential to shut down the business entirely, until such time as they decide to follow practices to protect their staff against the coronavirus. Under Ontario Law and the OHSA, employers are also obligated to report cases or potential cases of COVID-19 in the workplace to the Ministry of Labour.

In addition to a stop-work-order, businesses that fail to adopt or adhere to reasonable practices aimed at protecting visitors (including patrons and customers) may be liable in tort. This means that if a patron or a customer contracts COVID-19 in that business, the organization itself may be the subject of a lawsuit.

Of course, the Public Services Health and Safety Association (PSHSA) has outlined a number of recommendations for employers and businesses as they re-open. These include aggressive/rigorous hand-washing requirements and isolation recommendations for employees who have been sick or who have traveled. Having said this, the policy recommendations issued by the PSHSA are fairly general and businesses may also need to implement best practices that are tailored to their everyday activities. Due to this fact, some businesses will not be able to resume “business as usual”, as their day to day activities will need to be altered.

What Should I Do To Prepare For Reopening of The Economy?

In preparation for reopening, it is a good idea for businesses to establish an infectious disease preparedness and response plan, which aligns with the recommendations provided by the Ministry of Health. This plan may consider the risk of exposure (to that particular workplace), sanitization protocols, equipment, and resources, how to ensure social distancing, and how work will be accommodated for those in isolation.

We are here to help if you are looking to make sure that your organization has aligned with legal obligations, in order to protect yourself and your employees once you return to work. While our physical office location is closed at this time, we are able to offer our assistance to you remotely. Please feel free to reach out to us at (905) 595-2225 or info@gosailaw.com for more information.

Other COVID-19 Questions:

What about business interruption insurance, can this help me?
How do I sign a Will with social distance policies?
How Force Majeure, Frustration, and other clauses in your contract may protect you from COVID-19?

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