FINALLY......ONT. GOV. DECREES CANNOT SUE IF YOU ARE LAID OFF DUE TO PANDEMIC - BETTER LATE, THAN NEVER.

Finally.........

Yesterday, the Ontario government published a new regulation which, among other things, deems temporary reductions or cessations in hours due to COVID-19, or any temporary layoffs due to COVID-19, which began on or after March 1, 2020 not to trigger constructive dismissal claims or the deemed termination and severance provisions under the Employment Standards Act, 2000 (“ESA”). 

The regulation deems employees who are not performing work (e.g., those on a temporary layoff under the ESA) on or after March 1, 2020 to have been on an Emergency Leave under the ESA. 

The regulation also provide that employees that were on layoff under the ESA have been, instead, on this Emergency Leave.

Though leaves of absence under the ESA generally require employers to continue employee participation in applicable pension plans, life insurance plans, accidental death plans, extended health plans and dental plans, the regulation does not require such participation or employer contributions if an employee who is not performing work (e.g., who is on a temporary layoff) is not participating in these plans/the employer was not making contributions as of May 29, 2020.

 

read more

IS WORKING-AT-HOME GOING TO BE PERMANENT OR MORE REGULAR, EVEN AFTER THE PANDEMIC? LEGAL TIPS - WHAT YOU NEED TO CONSIDER.

Working from home – will it be more permanent or, at least, regular, even after the pandemic?

Stay-at-home work may be part of the “new normal” in the City of Kawartha Lakes for many businesses and organizations.

If so, there are a few legal issues to consider and plan for, not only to minimize liability for employers, but to enrich the work-at-home arrangement for both employers and employees.

Transitioning to remote work conditions involves some changes, legally.

HEALTH AND SAFETY ISSUES:

Although there may be some debate amongst legal professionals, arguably Ontario’s Occupational Health and Safety Act (the “Act”) extends to remove working arrangements. If not, expect the provincial government to soon verify that is the case.

Employers have a statutory duty to take all reasonable steps to ensure safety in the workplace, including for those working at home. Similarly, applicable federal legislation imposes the same obligation. To minimize exposure to liability, employers should assume this duty extends to those employees who are asked to, or who are permitted to, work at home in future.

Ontario has recently promulgated health and safety guidelines for operating a business during the pandemic, which apply to work-at-home arrangements, as may be relevant. Those should be reviewed and considered by both employers and employees. 

To incorporate work-from-home arrangements in future, including following the pandemic, employers should review and revise their workplace policy to ensure they: 

  • require employees conduct their own assessment of the workplace and, after doing so, promptly report any potential risks/hazards;

  • explore and address ergonomic issues relating to employees’ workplaces, including seating, keyboarding and monitor viewing;

  • establish the procedure for notifying and contacting the employer and evacuating the home or other remote work area to a safe location in the event of an emergency;

  • address the procedure for reporting promptly any work-related incidents or injuries;

  • facilitate a fairly regular, scheduled "check-in" process with the employer and, if appropriate, co-workers;

  • provide for a risk management/emergency procedure if an employee cannot be contacted, or communication is otherwise disabled; and

  • provide for suitable and appropriate training for both supervisors and those working from home.

ONTARIO HUMAN RIGHTS CODE ISSUES:

COVID-19 bring more attention to the potential need to accommodate employees, particularly regarding family status and disability-related issues. The most common issues are:  

  • employees with young children being forced to balance full-time work with child care and educational responsibilities, while schools are closed and without the usual services  provided by child care centres, schools, home maintenance, etc.;

  • a need for additional time off due to illness, or a need to care for family members who are ill; and

  • a need to work remotely due to concern of exposure or for other family (household) members who may have existing medical conditions or are elderly, which may make them more vulnerable to COVID-19.

In Ontario, employers must be mindful of the COVID-19 legal implications, including:

  • Ontario now has a job-protected, unpaid infectious leave of absence, including for COVID-19;

  • Ontario’s Human Rights Code requires employers to adopt individualized approaches to employees' requests for accommodation - there is no one-size-fits-all, cookie-cutter, standard approach to accommodation requests and each request must be determined on the basis of the relevant circumstances affecting the individual employee and the employer; and

  • employers’ obligations may vary or differ depending on whether the accommodations requested are short-term, medium-term, or permanent - permanent accommodation requests should not be rebuked merely because they are permanent in nature; rather, employers may be obliged to provide permanent accommodation if doing so falls short of "undue hardship."

REMEMBER BULLYING, INTIMIDATION AND HARASSMENT:

Harassment, bullying and discrimination occur with virtual interactions, too.

Employers are required to take reasonable steps to prevent and address such conduct under Ontario’s human rights and occupational health and safety legislation.

Accordingly, employers must review and ensure their workplace violence, bullying and harassment policies address "virtual" conduct and include a process for complaints and investigations that can take place outside of the regular workplace environment.

WORKPLACE POLICY:

For those employers intending to continue work-at-home arrangements, including after the pandemic, they should establish a workplace policy delineating the protocol, practice and procedures for:

  • the existing arrangements (during the pandemic);

  • when schools and child care centres reopen ultimately;

  • when social/physical distancing measures are relaxed, or removed; and

  • the post-pandemic period, when restrictions no longer exist and the “new normal” applies.

Set expectations for employees sooner, rather than later, despite that it may be difficult to do so amidst the uncertainty of the pandemic.  Things will change; developments will materialize that were not reasonably predicted. Workplace policies may need to be modified, or changed, to accommodate unforeseen developments during and after the pandemic.

Employers should develop and implement a flexible, scalable remove working policy, which addresses:  

  • the meaning of "remote work";

  • the employer's organizational polices, rules and practices that apply to remote work employees;

  • eligibility, approval and duration of a remote work arrangement;

  • specific remote work arrangements that may need to incorporate a distinct written remote work agreement between the employee and the employer;

  • specific responsibilities of the manager/supervisor for the work-at-home arrangement;

  • remote work training that may be necessary, if any;

  • feedback, performance reviews and evaluations;

  • technology and communications, including setting up employees with the necessary computer and peripheral equipment at home and the costs related thereto;

  • work hours and schedule;

  • overtime issues and procedure;

  • emergency measures;

  • performance, work quality and professional standards and expectations;

  • information and personal information security and measures to prevent unauthorized disclosure and privacy breach protocols; and

  • restrictions and limits on engaging in personal affairs/business during the work day.

read more

HOW TO RE-OPEN - COVID-19 STEPS TO TAKE - RETAIL STORES, OFFICES, ETC. IN THE CKL - BEST PRACTICES TO MAXIMIZE SAFETY AND MINIMIZE LIABILITY.

As we gradually re-open the CKL, some sectors, including retail stores and professional offices, have no health and safety guidelines available yet from the Ontario government. 

While the guidelines for the five, key sectors announced to date overlap substantially and, effectively, apply to any public business space, it is important for all business spaces to know and adhere to the proper containment measures, including because there is so much discussion about a 'second wave' currently. 

Below is an excellent article on procedures and steps that should be considered for any public business space, including offices and retail stores, while those businesses should also review and implement the Ontario health and safety guidelines recently published, to the extent they provide for additional measures not specifically identified by this article. 

"As we better understand the challenges associated with COVID-19, attention has turned to reopening the Canadian economy and retuning to work. This, in turn, raises questions about the steps that employers should be taking to train their employees and adapt their physical workplaces in order to continue operating (if they did not shutdown during the pandemic) or return to work (if they did shutdown) in a COVID-19 world.

As employers across the country consider these challenges, one thing is absolutely clear—careful planning is required to accomplish the competing but essential goals of maximizing protection from the spread of COVID-19 in the workplace for employees, customers and others, while at the same time minimizing disruption to the employer's business operations. Every business is unique, and there is no one business continuity or return to work plan that is recommended for all. Instead, employers must consider a range of issues in the context of their particular business needs. The purpose of this blog is to address some of the issues that employers should have in mind as they develop and adapt their business continuity and/or return to work plans. Bennett Jones is available to assist you and your business as you adjust to the "new normal" of COVID-19.

Risks Associated with Operating a Business During COVID-19

In response to the spread of COVID-19, governments across Canada issued public health directives and emergency orders, including closure orders for many businesses in non-essential industries. As the economy gradually reopens, these closure orders are being removed. However, the timing for reopening of specific businesses varies from industry to industry, and from jurisdiction to jurisdiction. Employers who were required to shutdown due to COVID-19 should understand when their business, in their province or jurisdiction, is permitted to reopen, and must not reopen until they are legally permitted to do so. Failure to comply with a closure order can lead to significant liability for businesses including, for example in Ontario, a fine of up to $10,000,000 under the Ontario Emergency Management and Civil Protection Act, and personal liability for directors and officers of the business.

Employers should also consider how the risks associated with COVID-19 affect their obligation to take reasonable steps to ensure a safe and healthy workplace under applicable occupational health and safety legislation. In particular, employers who fail to take adequate steps to prevent the spread of COVID-19 in the workplace may be subject to inspections, compliance orders and significant fines imposed by occupational health and safety officials. There is also the potential for civil liability where the spread of COVID-19 in the workplace leads to illness or injury for employees and third parties who do not have workers' compensation coverage. Finally, employers must be mindful of their obligations under existing employment agreements, employment policies and (if they are unionized) collective agreements, and ensure their business continuity and/or return to work plans take these obligations into account.

In addition to the legal risks associated with carrying on business during COVID-19, there are operational risks as well. In particular, if an employer fails to take adequate steps to prevent the spread of COVID-19 in the workplace, the risk of an outbreak among employees increases. This, in turn, could necessitate the adoption of even stronger preventative measures, or reclosing parts of the employer's business, or the whole business, for an additional period of time. On the other hand, if the anti-COVID-19 measures adopted by an employer are too restrictive or onerous, the employer's business operations may suffer as a result.

Preliminary Steps Before Developing a Business Continuity or Return to Work Plan

Before an employer develops its business continuity or return to work plan, there are a number of preliminary steps that should be taken.

  1. First and foremost, determine who the decision makers are that will be responsible for designing and implementing the plan. Steps involved in this process should include:

    • plan preparation, which includes assessing your workplace and developing an operational/return to work plan that clearly demonstrates you have taken "every reasonable precaution in the circumstances" to prevent the spread of COVID-19;

    • plan implementation, which includes developing an effective communication and training strategy for employees;

    • monitoring compliance with, and the effectiveness of, the business continuity/return to work plan, which includes regular review and consideration of applicable government and public health guidance; and

    • responding to issues and problems as they arise and adapting the business continuity/return to work plan as necessary to meet unforeseen challenges.

    If a COVID-19 response team or committee has previously been set up, it may be best suited to take on responsibility for the business continuity/return to work plan as well.

  2. Consider if the decision makers responsible for your business continuity/return to work plan have the necessary expertise, or if they require the assistance of experts such as a medical professional, occupational health and safety specialist, communications expert, design consultant or other technical specialist. In addition, consider if anyone other than the designated decision makers should be consulted about the business continuity/return to work plan, such as, for example, a joint health and safety committee or, in the case of a unionized workplace, possibly the union.

  3. Consider what resources are available to monitor the latest updates regarding COVID-19, and business operation/return to work guidelines for employers. For example, federal and provincial governments have all established dedicated COVID-19 websites and online resources that are regularly updated with public health and related information. Guidance for employers in each province and jurisdiction to limit the spread of COVID-19 in the workplace has now been posted to these locations. In addition, federal, provincial and some municipal public health authorities have established websites and links that are regularly updated as information becomes available. Most provincial occupational health and safety authorities have established similar online resources. Lastly, many industry associations have developed or are preparing return to work recommendations and best practices specifically tailored to their industry. All of these resources should be regularly consulted and considered by the designated business continuity/return to work decision makers for your business.

  4. Finally, consider timing for the ramp-up or reopening of your business. In particular, determine when your business is legally permitted to reopen. For employees who have been laid off, consider how they will be recalled and confirm whether any advance notice of recall is required in your jurisdiction. Also consider whether all employees will return to the workplace at the same time, or if the return to work will occur in stages, with some employees returning before others. For example, will some employees who are able to work or continue working remotely from home be permitted or required to do so, while other employees return to the physical workplace? If a staggered return to work is contemplated, consider which employees will return first and whether this creates any constructive dismissal or other issues under existing employment contracts. Also, if there is a collective agreement with a union, review the recall and seniority provisions to determine if they comply with the business continuity/return to work plan, or if changes are necessary in consultation with the union.

Issues to Consider in Your Business Continuity or Return to Work Plan

There are a number of issues that should be considered in any business continuity or return to work plan. These include the following:

Communications and Training

Consider how the business continuity/return to work plan, and employee responsibilities under the plan, will be communicated to employees. For example, will there be any communication with employees regarding the plan before they return to the physical workplace? How will questions or feedback from employees be handled? Will you hold regular health and safety meetings to review COVID-19 related procedures? Will any signage be needed in the workplace to ensure employees understand their obligations in particular circumstances? With respect to training, consider whether anything is required so that employees know their obligations in terms of sanitizing, physical distancing, use of PPE and other matters. Consider whether managers require any special training to administer the business continuity/return to work plan. Finally, make sure your plan states that you will continue to adapt and make changes as necessary, and communicate those changes to employees.

Self-Reporting Requirements and Privacy Considerations

Ensure clear guidelines are established so that employee know their responsibility to self-report a positive COVID-19 diagnosis for themselves or their family members, or where the employee or a family member exhibits symptoms of possible COVID-19, or where the employee has come into contact with someone else with COVID-19, or where the employee is subject to travel-related quarantine restrictions, etc. Consider if employees should be required to perform a self-assessment or complete a questionnaire prior to attending at work, or provide any other information to the employer such as COVID-19 test results. Consider if other forms of assessment such as temperature checks will be carried out at work. Consider if employees will be required or encouraged to download a government approved contact tracing app onto their cell phone, and make information from the app available to the employer on request. Finally, consider what privacy protections are necessary in order to deal with any COVID-19 related personal information that is received by the employer, and whether there are any privacy limits on the information that can be collected.

Sanitizing the Workplace

Implement a thorough cleaning of the physical workplace before employees return to work, and communicate this to employees. Consider if the initial cleaning should be carried out by your regular cleaning contractor, or if a specialized service provider is necessary. Once employees return to the physical workplace, consider what cleaning schedules and protocols are necessary. Consider whether cleaning and disinfecting supplies such as alcohol wipes, hand sanitizer dispensers and wash stations will be provided for employees, if the availability and location of these supplies is adequate, and what rules will be enforced concerning their use by employees and third parties present in the physical workplace.

Personal Protective Equipment (PPE)

Consider whether employees will be required to use PPE, and if so which employees, in what circumstances and what specific PPE. For example, will employees who take an elevator to and from the office each day be required to wear a face mask during their elevator trips? Will PPE be provided or made available to employees required to use it, and if so what standard of PPE will be considered adequate (for example, will an N95 mask be considered necessary in certain circumstances, as opposed to another form of face mask). Will employees be permitted to use their own PPE if they prefer and, if so, are there any standards applicable here?

Regular Hours of Work, or Shifts and Staggered Start Times?

Will regular hours of work be maintained for all employees, or will shifts or staggered start times be required in order to reduce the number of employees at work at a given time, and promote physical distancing? If staggered start times or shifts are necessary, review any union collective agreements to determine whether the proposed work schedule is in compliance, or if discussions with the union will be necessary. Consider your obligations under applicable employment standards and human rights legislation if there are any employees for whom the proposed shift or start times create a particular hardship due to family obligations or other factors.

Entry and Exit Points

Consider entry and exit points to the physical workplace, and whether these access points are controlled by the employer or a third party such as a landlord. If the landlord or other third party controls the access points, consult with them to determine what their plan is to reduce to the risk of COVID-19 exposure for people using the access points, and whether the proposed measures are too lax or too onerous in the circumstances. For example, will there be limits on the number of people allowed to use the elevator at one time, and are those limits practical in the circumstances? How will lineups and bottlenecks at access points (for instance, people waiting to use the elevator) be dealt with, and how will physical distancing be maintained in these circumstances? Consider if the number of access points to the workplace should be restricted so that the number and identity of people in the workplace can be better monitored and controlled. Consider how any such measures comply with fire code and other safety regulations. Consider if any special monitoring equipment such as temperature checking devices will be used at access points, and what rules apply to that. Finally, consider how deliveries and other shipping and receiving issues will be dealt with, and whether items delivered to the workplace should be sanitized and how.

Physical Distancing of Work Stations

Consider whether the physical separation of work spaces is adequate and whether any changes to the physical layout of the workplace are advisable or possible. Consider whether other measures besides reconfiguring the workplace are possible, such as reducing the density of employees in particular areas, use of plexiglass screens or other physical separation equipment or the use of directional signage and floor markings.

Gathering Areas

Consider common gathering areas such as reception areas, lunch rooms and meeting rooms, and whether any measures are required to promote physical distancing in these spaces. Consider whether all common or gathering areas in the workplace will be open, or whether some will remain closed.

Frequent Touchpoints and Common Equipment

Consider frequent touchpoints such as door handles, light switches and elevator buttons, and what steps are necessary to ensure they remain clean and disinfected. Should measures such as propping open doors be considered, and how will this work in terms of safety and security concerns, fire code regulations and other considerations? What steps will be taken to ensure that common equipment such as coffee machines, cups and glasses, microwave ovens, vending machines, water coolers and photocopiers remain clean and disinfected, and will all such equipment remain in use or will some of it be temporarily removed or shut off?

HVAC Systems

Are there any changes or improvements to the HVAC system that should be considered to improve ventilation and air circulation in the workplace?

Third-Party Access

Consider whether any measures are necessary to limit or control third-party access to the physical workplace. Consider what physical distancing, sanitization, PPE or other requirements will be imposed on third parties present in the workplace, and what steps will be taken if a third party refuses to comply with these requirements. Consider if there are any contractor employees present on site (for example cleaning personnel), what COVID-19 related rules apply to them, whether the rules are adequate and who is responsible for enforcing those rules. Consider if there are any alternatives to in-person third-party meetings that should be promoted or mandated through the use of technology (such as Zoom conferences and other virtual meeting options).

Changes to Employment Policies

Consider whether there is anything in the business continuity or return to work plan that requires your existing employment policies to be amended, or new polices to be adopted, and how those policy changes will be communicated to employees. In the case of a unionized workplace, consider whether the business continuity/return to work plan complies with any collective agreements, and whether consultation with the union is necessary or advisable in relation to the plan.

Consequences for Failure or Refusal to Comply with the Business Continuity or Return to Work Plan

Consider what disciplinary or other consequences will be applied to employees who fail or refuse to comply with the business continuity or return to work plan. For example, will employees be sent home in these circumstances, and if so will they be paid or unpaid while they are away? When considering the issue of discipline, take into consideration whether the employee's action constitutes misconduct, or if it reflects a legitimate concern involving human rights, privacy or the right to refuse unsafe work under occupational health and safety legislation. Also consider what steps will be taken where a third party or contractor employee fails or refuses to comply with the business continuity or return to work plan.

Response to a Positive Diagnosis or Potential Exposure to COVID-19 in the Workplace

Consider in advance what steps you will take if an employee or their family member tests positive for COVID-19, or is exhibiting symptoms of possible COVID-19, or has been exposed to someone else with COVID-19. Will self-quarantining or testing be required in these circumstances, and what happens if the test result comes back positive or negative? What steps will be taken with respect to contract tracing among other employees, and who will be responsible for that? Will the business remain open while these steps are taken, or are there any additional protective measures that will be implemented in these circumstances? How will a positive test result in the workplace be communicated to other employees, bearing in mind the privacy rights of the employee with confirmed or suspected COVID-19?

Response to Employees Who Believe that Returning to Work will Cause or Exacerbate a Disability or Health Risk

Some employees may believe that returning to work at this time will cause or exacerbate an existing disability such as anxiety, an autoimmune disorder or respiratory problems, or lead to some other increased risk to health and safety. Consider in advance how you will handle these concerns, including who such concerns should be directed to, what medical information will be required from the employee, whether any job protection exists under applicable employment standards legislation and whether the employee would qualify for short- or long-term disability benefits in these circumstances. Also consider whether any human rights issues arise and, if so, whether the employee can be accommodated by working from home.

The list of issues above is not exhaustive, and other factors may also need to be considered depending on the nature of the employer's business....." 

Credit: 

 Carl Cunningham and John R. Gilmore, Bennett Jones LLP, published via Lexology on May 21, 2020 

 

read more

UPDATE ON THE COMMERCIAL RENT SUBSIDY FOR CKL SMALL BUSINESSES - APPLY NOW. WHAT YOU NEED TO KNOW.

The federal government announced today that application documents and updated criteria for Canada Emergency Commercial Rent Assistance (CECRA) for small businesses are now available, and that the program will be opened for applications beginning on May 25.

This program will provide forgivable loans to eligible commercial property owners, who in turn will give a rent reduction of at least 75 per cent for April and May (retroactive), and June, to their small business tenants.

Applications will be accepted through the Canada Mortgage and Housing Corporation website beginning on May 25, and application documents can be accessed now.

Additional Information About CECRA: 

  • CECRA will provide forgivable loans to qualifying commercial property owners, whether they have a mortgage on their property or not. The loans will cover 50 per cent of three monthly rent payments that are payable by eligible small business tenants who are experiencing financial hardship during April, May, and June.

  • The loans will be forgiven if the qualifying property owner agrees to reduce the small business tenants’ rent by at least 75 per cent under a rent reduction agreement, which will include a term not to evict the tenant while the agreement is in place. The small business tenant would cover the remainder, up to 25 per cent of the rent.

  • Impacted small business tenants are businesses that are paying less than $50,000 per month in gross rent in a given location, with annual revenues of less than $20 million (at the ultimate parent level), and who have experienced at least a 70 per cent drop in pre-COVID-19 revenues.

read more

CKL BUSINESSES - ONT. GOV. BEING CRITICIZED FOR ALLOWING RE-OPENING WITHOUT PROPER TESTING IN PLACE - GET READY FOR THERMAL TESTING IN YOUR WORKPLACE. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

 
 
 
read more

SUPPORT FOR OUR ELDERLY AND ISOLATED - N.I.C.E. - FREE SESSIONS - CHECK IT OUT.

Did you know about the NATIONAL INITIATIVE FOR THE CARE OF THE ELDERLY (NICE)?

NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults, both in Canada and abroad.

Its members represent a broad spectrum of disciplines and professions, including geriatric medicine, gerontological nursing, gerontological social work, gerontology, rehabilitation science, sociology, psychology, policy, law and older adults themselves and their caregivers.

Joining NICE is only a click away. 

NICE partners with both the Canadian government and the University of Toronto, among others. 

They run a program called TALK 2 NICE, mostly supporting our elderly and other socially isolated people during these challenging times.

The program offers no-charge outreach and counselling to older adults and those with disabilities.

A person may join and call in to the program – they will be connected with social workers or social work students.

The toll free number is: 1 (844) 529-7292.

A session can also be booked online at http://www.nicenet.ca.

Sessions of varying times may be scheduled, including up to thirty minutes, or simply a “Friendly Check In”.

Socially isolated elderly and disabled people may benefit from his support, especially during the pandemic. 

NICE has trained volunteers offering positive, supportive advice and assistance, including referral to more helpful resources, if needed.

NICE also offers guidance on whether to relocate a family member from institutional care during the pandemic.

This is a great resource to those who may be isolated, lonely or otherwise in need of trained, positive support. 

read more

NON-MEDICAL MASKS OFFICIALLY RECOMMENDED TODAY AS "ADDITIONAL MEASURE" - PHYSICAL DISTANCING REMAINS ESSENTIAL. YOUR UPDATE.

Today federal public health officials are now officially recommending that people wear non-medical masks in situations where physical distancing isn’t possible.

After initially advising against wearing non-medical masks, federal health officials said in April that people who don’t have symptoms of COVID-19 could wear non-medical masks when in public as “an additional measure” to protect others — but officials didn’t present it as an official recommendation.

Updated recommendations on the use of non-medical masks amid the ongoing pandemic will be posted on the government’s website later today, Canada’s chief medical officer of health said Wednesday.

Dr. Theresa Tam has said some evidence suggests that COVID-19 can be spread by people who aren’t showing symptoms.

Tam, however, has emphasized that wearing a mask — whether medical or non-medical — does not replace staying two metres apart from people outside your household and maintaining proper hand hygiene.

Health officials on Wednesday said those measures must continue through the spring and summer months and urged that “staying home when sick is a must.”

read more

CKL BUSINESSES - ELIGIBILITY FOR THE CEBA $40,000 LOC NOW EXPANDED - FIND OUT IF YOU QUALIFY - WHAT YOU NEED TO KNOW TODAY.

Today the federal government announced an expansion to the eligibility criteria for the Canada Emergency Business Account (CEBA), to now include many owner-operated small businesses.

The changes to the CEBA are intended to allow more Canadian small businesses to access interest free loans that will help cover operating costs during a period when revenues have been reduced, due to the pandemic.   

The program will now be available to a greater number of businesses that are sole proprietors receiving income directly from their businesses, businesses that rely on contractors, and family-owned corporations that pay employees through dividends rather than payroll.

To qualify under the expanded eligibility criteria, applicants with payroll lower than $20,000 would need:

  • a business operating account at a participating financial institution
  • a Canada Revenue Agency business number, and to have filed a 2018 or 2019 tax return.
  • eligible non-deferrable expenses between $40,000 and $1.5 million. Eligible non-deferrable expenses could include costs such as rent, property taxes, utilities, and insurance.

Expenses will be subject to verification and audit by the Government of Canada. Funding will be delivered in partnership with financial institutions. More details, including the launch date for applications under the new criteria, will follow in the days to come.

Notably to date, over 600,000 small businesses have accessed the CEBA, and the government will work on potential solutions to help business owners and entrepreneurs who operate through their personal bank account, as opposed to a business account, or have yet to file a tax return, such as newly created businesses.

More Key Information About The CEBA: 

  • $40,000 line of credit or loan, depending on financial institution
  • Government-backed (guaranteed)
  • Intended to be used for funding operational expenses, including commercial rent and utilities
  • Must have payroll between $20,000 and $1.5 million in 2019
  • $10,000 is non-repayable if balance is repaid by Dec. 31, 2022
  • New businesses, self-employed and those who pay themselves by dividends may not qualify
  • Tips for applying here: http://wardlegal.ca/31586368607013

 

read more

FAMILY COURT ISSUES ANOTHER STERN WARNING TO WARRING PARENTS (AND THEIR LAWYERS). A MUST-READ FOR ANYONE FACING FAMILY COURT LITIGATION.

The Family Court has recently issued another stern caution and warning to those embroiled in Family Court litigation, including the lawyers who represent them. 

This important guidance is in Alsawwah v. Afini, 2020 ONSC 2883, at paragraph 108, and is a must-read for every person who finds himself or herself in the challenging landscape of the Superior Court - Family Division: 

"In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

1.            Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.

2.            Nor are we swayed by rhetoric against the other party that verges on agitprop.

3.            Our decisions are not guided by concerns of marital fidelity. A (nonabusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.

4.            Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that  emanates from that party or their counsel.

5.            Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.

6.            Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.

__________________

Note by us: Sub-Rules 14(18) and (19) read:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.  O. Reg. 114/99, r. 14 (18).

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.  O. Reg. 114/99, r. 14 (19).

_________________________

7.            A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.

8.            Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.

9.            Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.

10.          One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.

11.          While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to Do." 

 

read more

CKL FAMILIES - CANADA CHILD BENEFIT INCREASED TODAY. WHAT YOU NEED TO KNOW.

The Canada Child Benefit (CCB) will be increased as of July. 

This additional tax-free support is intended to assist families to pay for things such as food, clothes, and activities they can do together at home.

The increase will be in place for the 2020-21 benefit year, and will raise the maximum benefit to $6,765 per child under age 6, and $5,708 per child aged 6 through 17.

This increase is in addition to the one-time special CCB payment announced by the federal government earlier this month, to help families deal with the added pressures of COVID-19.

On May 20, 2020, this special measure will give families currently receiving the CCB an additional $300 per child with their May payment, and deliver almost $2 billion in extra support across the country to help families during this challenging period.

read more

CKL BUSINESSES - FEDERAL WAGE SUBSIDY EXTENDED AND EXPANDED. WHAT YOU NEED TO KNOW.

The Canada Emergency Wage Subsidy (the “CEWS”) has been both extended and expanded: 

  • extended for another 3 months to August 29, 2020; and

  • expanded to include eligibility for the following groups:

    • partnerships that are up to 50% owned by non-eligible members;

    • Indigenous government-owned corporations that are carrying on a business, as well as partnerships where the partners are Indigenous governments and eligible employers;

    • registered Canadian amateur athletic associations;

    • registered journalism organizations; and

    • non-public colleges and schools, including institutions that offer specialized services, such as arts schools, driving schools, language schools, or flight schools.

The government announced further proposed changes to the CEWS which will require legislation, including:

  • providing flexibility for employers of existing employees who were not regularly employed in early 2020, such as seasonal employees;

  • ensuring that the CEWS applies appropriately to corporations formed from the amalgamation of two predecessor corporations; and

  • better aligning the treatment of trusts and corporations for the purpose of determining CEWS eligibility.

These new changes will hopefully be legislated very soon. 

 

read more

REOPENING THE CKL - WHO? WHEN? HOW? ANSWERING YOUR QUESTIONS

May 15 - The Ontario government announced the following businesses will be permitted to open, with restrictions, effective Tuesday May 19, 2020 at 12:01 a.m. E.D.T.:

  • "Retail services that are not in shopping malls and have separate street-front entrances with measures in place that can enable physical distancing, such as limiting the number of customers in the store at any one time and booking appointments beforehand or on the spot.

  • Seasonal businesses and recreational activities for individual or single competitors, including training and sport competitions conducted by a recognized national or provincial sport organization. This includes indoor and outdoor non-team sport competitions that can be played while maintaining physical distancing and without spectators, such as tennis, track and field and horse racing.

  • Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments.

  • Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance.

  • Lifting essential workplace limits on construction.

  • Allowing certain health and medical services to resume, such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries, all based on the ability to meet pre-specified conditions as outlined in A Measured Approach to Planning for Surgeries and Procedures During the COVID-19 Pandemic."

In addition, effective Saturday, May 16, 2020 at 12:01 a.m. E.D.T., the following seasonal services and activities will be permitted to reopen according to a government press release:

  • "Golf courses will be able to open, with clubhouses open only for washrooms and restaurants open only for take-out.

  • Marinas, boat clubs and public boat launches may open for recreational use.

  • Private parks and campgrounds may open to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract.

  • Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal."

The regulation required to permit these operations was not yet published by 5:00 p.m. E.D.T. on May 14, 2020.

read more

NEW (FREE) ONLINE DRIVER'S LICENCE CHECK SERVICE NOW AVAILABLE

You can now check the status of your Ontario driver's licence online and for free. 

The Ontario government has eliminated the $2 fee and is modernizing the online Driver's Licence Check service.

You can check for free on the validity of your driver's license. 

The improvements to the online service will make it easier to use, including the ability to easily check a driver's licence by scanning the card on a mobile device. The changes will also reduce burden on businesses by expanding the number of licence checks entered at one time from nine to 100.

read more

CKL FARMERS - MORE FINANCIAL HELP - APPLY NOW. WHAT YOU NEED TO KNOW.

The governments of Canada and Ontario have jointly announced they are investing up to $2.25 million to help farmers better protect employees and ensure the continued supply of healthy food products for consumers during the COVID-19 outbreak.

Through the Canadian Agricultural Partnership (the Partnership), the federal and provincial governments are launching the second intake of the Agri-food Workplace Protection Program to help farmers enhance health and safety measures to prevent the spread of the virus. The funding will be used for initiatives like purchasing personal protective equipment, enhanced cleaning and disinfection, and redesigning workstations.

Support is also available for farmers who experience unexpected costs for housing and transportation as a result of a COVID-19 outbreak among on-farm employees.

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is now accepting applications and will expedite the approval process to help support workplace health and safety in the agri-food sector. Eligible applications will be received and assessed on a continuous basis, while funding is available.

Today's announcement is in addition to the $2.25 million investment announced last week to help provincially-licensed meat processors implement COVID-19 health and safety measures.

The Agri-food Workplace Protection Program builds on previous actions taken by the federal and provincial government to support the agri-food sector. This includes $1 million to help Ontario farmers, food processors and other agri-food supply chain partners address labour shortages, as well as $2.5 million to improve e-business opportunities for Ontario's agri-food sector.

Since June 2018, both the federal and provincial governments have committed support to approximately 2,500 projects through the Partnership to help eligible Ontario farmers, processors, businesses and sector organizations innovate and grow.

read more

CKL SEPARATED PARENTS - DID YOU KNOW YOU CAN SET UP AND ADJUST CHILD SUPPORT ONLINE DURING THE PANDEMIC? NO FAMILY COURT REQUIRED. SEE IF YOU QUALIFY - WHAT YOU NEED TO KNOW.

Did you know you can potentially set up, or adjust, child support payments online, without having to endure the Family Court process? 

How it works

To set up or update child support online, you and the other parent or caregiver may have to provide your income information. It is used to calculate the amount of child support to be paid.

When one parent sets up or updates child support online, the other parent will be notified by mail and must respond online within 25 calendar days. Both parents may also be required to complete a consent form to allow the Canada Revenue Agency to share their income information with the service.

Once you and the other parent or caregiver have provided the necessary income information, both of you will be mailed a Notice of Calculation or Recalculation. This document includes the new child support arrangement, including the amount to be paid. It will be enforced just like a court order.

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

If the other parent or caregiver does not respond

If the other parent or caregiver does not respond to the request, the service may automatically update your child support based on the information you provided.

This will only happen if:

  • you set up your existing child support in court or online

  • your child support case is not currently before the court

  • you are not changing the special expenses covered in your child support

If the parent or caregiver who did not respond pays child support, the service may assume that their income has increased.

Who can use the service

You can set up or update child support online if:

  • one parent or caregiver lives with the child or children 60% of the time

  • you don’t currently live with the other parent or caregiver

But, if you’re setting up child support, the other parent or caregiver can deny your request to use the online service. In this case you will have to use the court process or arrange child support in a written agreement.

Talk to the other parent or caregiver before submitting an application to make sure that they agree to use this service.

You cannot set up or update child support online if:

  • either parent or caregiver, or any of the children, live outside of Ontario

  • any children are over 17.5 years old or married

  • there is split or shared custody of the child or children

  • the child support order being updated was based on undue hardship or imputed income

  • the parent or caregiver who currently pays or will pay for child support:

    • is self-employed

    • earns more than $150,000 or less than $12,000 annually

    • earns income in cash

    • is a partner or majority shareholder of a business

    • earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)

If you are the parent or caregiver who pays child support you can choose whether to provide your income through tax information or pay stubs.

If you are the parent or caregiver who receives child support, and you don't think the other parent’s income can be accurately shown by either pay stubs or tax information, you should not use this service.

Required documents

Before you start setting up or updating child support online, make sure you have:

  • your Social Insurance Number or Temporary Tax Number

  • a current mailing address for the other parent or caregiver

  • contact information for the person responsible for payroll at your workplace (if you’re the person who currently pays or will pay child support)

  • an electronic copy of your current court order or separation agreement, or information from your current Notice of Calculation or Recalculation

If you didn’t file your taxes last year, you will also need either:

  • your three most recent pay stubs, or

  • the most recent statement of income from employment insurance, social assistance, a pension, workers compensation or disability payments

Start using the service

Start using the online service to set up or update child support.

Set up or update child support

Cost

There is a non-refundable $80 fee each time you use the service, whether you’re setting up or updating child support.

Accepted forms of payment

Visa, Mastercard or Interac® Online

No refunds for inaccurate information

You will not be refunded the $80 fee if the application cannot be processed due to inaccurate information. This includes when the other parent or caregiver replies that information is not accurate in the original application.

Fee waiver

You may be eligible to have the application fee waived, if your household (you, your spouse and children) are considered low-income. You can apply for the fee waiver in the online application.

Consulting a lawyer

Consult a lawyer if you’re still unsure about setting up or updating child support online. If you can’t afford a lawyer, you can find out if you qualify for legal aid.

Contact the Child Support Service

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

read more

CKL BUSINESSES - IF YOU DO NOT QUALIFY FOR OTHER RELIEF, OR YOU NEED MORE FINANCIAL HELP, APPLY NOW FOR THE NEW RELIEF AND RECOVERY FUND. NOW OPEN FOR APPLICATIONS. WHAT YOU NEED TO KNOW.

The Government of Canada has announced a new national $962 million Regional Relief and Recovery Fund (RRRF), which provides $675 million in financing support to small- and medium-sized enterprises (SMEs) that are unable to access existing COVID-19 measures and $287 million to support rural business' and communities with access to capital through Community Futures Development Corporations (CFDCs).

FedDev Ontario will deliver $213 million in RRRF funding throughout southern Ontario. Southern Ontario CFDCs will deliver $39.4 million in funding to support rural businesses in the communities they serve.

Through the new RRRF, there is available: 

Through the new Regional Relief and Recovery Fund, Canada’s six RDAs are delivering:

  • $675 million in support to SMEs that are unable to access other federal COVID-19 relief measures; and
  • $287 million for the national network of Community Futures Development Corporations (CFDCs) to provide funding and other support to small businesses in rural communities; 
  • in southern Ontario, FedDev Ontario will invest $213 million by providing interest-free repayable contributions (loans) to help support business’ fixed operating costs, where revenues have been affected by the COVID-19 pandemic. The RRRF seeks to support southern Ontario SMEs to address gaps in or supplement other federal relief measures, as well as complement those provided by other levels of government. In particular, the RRRF seeks to provide support to southern Ontario SMEs that do not qualify for, or have been rejected from, current Government of Canada COVID-19 relief measures, or are experiencing ongoing funding needs despite having accessed other funding measures.

For assistance: 1-866-593-5055.

Qualify and apply here: 

https://www.feddevontario.gc.ca/eic/site/723.nsf/eng/home

 

read more

RETURNING TO WORK PART-TIME OR REDUCED HOURS? BE CAREFUL WITH YOUR CERB. AVOID REPAYMENT. WHAT YOU NEED TO KNOW.

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

  • Available between Mar. 15 and Oct. 3, 2020

  • Must be 15 and Canadian resident

  • Must have declared $5,000 total income in preceding 12 months or in 2019 (including by self-employment)

  • 7, 4-week eligibility cycles or claiming periods

  • Does not need to be consecutive claiming periods – maximum of 16 weeks (4 months) in total during entire period of program

  • Taxable benefit (not deducted at source; must be claimed in next personal income tax filing)

  • When first applying, cannot earn more than $1,000 from other sources for 14 or more consecutive days within the 4-week claim period

  • For future claim periods, cannot earn more than $1,000 income during the claim period

  • Cannot qualify if laid off, but earns income from other work or on reduced hours

  • Cannot voluntarily withdraw or quit – must qualify for an approved statutory leave of absence under the Employment Standards Act or work disruption must be related to COVID-19

  • Cannot be topped up by employers, unless the top up is not more than $1,000 in any 4-week claim period

  • Replaces EI regular benefits if unemployment occurs on or after Mar. 15, 2020

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

  • Note: payment of accrued vacation time if a lay off or termination could disqualify CERB (if more than $1,000 within 14 days before initial application or during the subsequent claim period)

  • Note: if recalled during a CERB claim period, resulting in income more than $1,000, may be required to repay the CERB during that claim period

 

Examples:

 

  • Salaried employee (including self-employed) – eligible if stops working for reasons related to COVID-19 (also eligible for CEWS and CEBA)

  • Sole proprietor – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

  • Own a corporation and paid by dividends, not salary – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

read more

CKL IS GRADUALLY REOPENING - WHAT CAN EMPLOYERS REQUIRE EMPLOYEES PROVIDE TO BE ENTITLED TO TAKE THE NEW INFECTIOUS DISEASE EMERGENCY LEAVE?

As we gradually reopen, what can an employer require an employee to provide before the employee may take the new infectious disease emergency leave in Ontario? 

An employer may require an employee to provide evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is eligible for infectious disease emergency leave but employers cannot require an employee to provide a certificate from a physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.

What is considered reasonable in the circumstances will depend on all the facts of the situation, such as:

  • the duration of the leave

  • whether there is a pattern of absences

  • whether any evidence is available and the cost of the evidence

If it is reasonable in the circumstances, evidence may take many forms, such as a:

  • travel documentation showing that the employee had travelled to a country for which quarantine or isolation is being advised

  • a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)

  • a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act

  • a note from an employee's day care provider indicating that the childcare centre was closed because of a designated infectious disease

Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.

For example, if an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period, if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

read more

NEW MEASURES/FUNDING TO PREVENT SEXUAL ASSAULT, GENDER-BASED VIOLENCE AND HUMAN TRAFFICKING IN THE CKL. WHAT YOU NEED TO KNOW DURING "SEXUAL ASSAULT PREVENTION MONTH"

New Ontario Funding for Victims of Gender-Based Violence and Human Trafficking During COVID-19

The government recently announced new measures to support people experiencing or at risk of sexual assault, gender-based violence and human trafficking during COVID-19:

"May is Sexual Assault Prevention Month, an important time to recognize those on the frontlines who are working each and every day to prevent sexual assault, gender-based violence and human trafficking. These professionals are dedicated and compassionate individuals who give selflessly to support those most in need.

Clearly, these extraordinary times are creating extraordinary challenges. Due to the COVID-19 outbreak there has been an increased risk of gender-based violence for many individuals who have been staying home and practicing physical distancing for weeks now.

It is crucial that Ontarians who have experienced or are at risk of sexual assault, gender-based violence or human trafficking have continued access to counselling and other critical services they need to stay safe, heal and rebuild their lives.

To further support those who need and rely on these services, our government is investing $1 million to help frontline agencies adapt to remote service delivery and ensure continued operation during COVID-19.

This funding will assist counselling service providers like the Assaulted Women's Helpline, who also work the Seniors Safety Line, which will receive $200,000 to develop text and online chat platforms, set up toll-free lines, provide on-demand interpreter services and hire additional staff to respond to increased call volume.

Along with the $40 million relief fund for residential service providers and emergency funding for victim services we have already provided, this response fund will ensure a range of critical supports remain available at this time. This is in addition to our government's large investment of $148 million in relief funding to ensure municipalities and social service providers can better respond to COVID-19.

Together with our partners across Ontario, our government remains committed to preventing sexual assault, gender-based violence and human trafficking, as well as supporting victims, survivors and those at risk of these crimes. Again, I would like to express my deep appreciation to those on the frontlines who are working tirelessly to ensure that people experiencing sexual and gender-based violence receive the support they need in this uncertain and difficult time."

read more

MORE FEDERAL SUPPORT TO BUSINESSES - BRIDGE LOANS, NOT BAILOUTS.

May 12 - The federal government announced additional support to mid-size and large businesses. The support is bridge financing and loan guarantees, rather than bailout funds, including: 

[1] expanding the Business Credit Availability Program to mid-sized companies with significant financing needs, including loans of up to $60-million per eligible company, and guarantees of up to $80-million; and

[2] establishing a Large Employer Emergency Financing Facility ("LEEFF") to provide bridge financing to eligible large employers whose needs are not being met through conventional financing mechanisms.

 The LEEFF program will be open to large for-profit businesses (with the exception of financial sector businesses) as well as certain not-for-profit businesses (e.g., airports) whose annual revenues are generally $300-million or more. While many LEEFF details remain unknown, the government stated that the following "guiding principles" will apply:

  • protection of taxpayers and workers:  
  • fairness; and
  • timeliness.

Businesses must be seeking financing of about $60-million or more and have significant operations or workforce in Canada in order to qualify for LEEFF. 

Businesses involved in active insolvency proceedings are ineligible. 

read more

CKL SENIORS - MORE FINANCIAL SUPPORT TODAY - $500 TAX FREE + ADDITIONAL BENEFITS. WHAT YOU NEED TO KNOW.

Since the start of the COVID-19 pandemic, the Government of Canada has invested $1.3 billion in a one-time special payment through the Goods and Services Tax (GST) credit in April, being an average of $375 for single seniors and $510 for senior couples.

Investment was also made in community organizations that provide practical services to Canadian seniors, including the delivery of groceries and medications.

Today the federal government announced this additional support to seniors: 

  • additional financial support of $2.5 billion for a one-time tax-free payment of $300 for seniors eligible for the Old Age Security (OAS) pension, with an additional $200 for seniors eligible for the Guaranteed Income Supplement (GIS) - a total of $500 to individuals who are eligible to receive both the OAS and the GIS, and will help them cover increased costs caused by COVID-19.

  • expanding the New Horizons for Seniors Program with an additional investment of $20 million to support organizations that offer community-based projects that reduce isolation, improve the quality of life of seniors, and help them maintain a social support network.

  • temporarily extending GIS and Allowance payments if seniors’ 2019 income information has not been assessed, intended to ensure that the most vulnerable seniors continue to receive their benefits when they need them the most. To avoid an interruption in benefits, seniors are encouraged to submit their 2019 income information as soon as possible and no later than by October 1, 2020.

 

read more

CKL BUSINESSES - NAVIGATING THE REOPENING - YOUR ROADMAP TO SUCCESS - TIPS, TRAPS AND WHAT YOU NEED TO KNOW

Ontario’s three-phase framework for Re-opening Ontario after COVID-19 (the "Framework") outlines general methods and guidelines to follow to reportedly safely and efficiently contain the spread of COVID-19, while re-opening businesses, services and public spaces:

Stage 1 (in progress)

Stage 2

Stage 3

  • opening select workplaces that can meet current public health guidelines
  • allowing essential gatherings of a limited number of people
  • opening some outdoor spaces
  • continued protections for vulnerable populations
  • opening more workplaces with significant mitigation plans
  • opening more public spaces
  • allowing some larger public gatherings
  • continued protections for vulnerable populations

 

  • opening all workplaces responsibly
  • relaxing restrictions on public gatherings
  • continued protections for vulnerable populations

 

No definitive timelines have been announced, particularly for phases two or three.

BUSINESSES GRADUALLY REOPENING IN PHASE ONE

As of May 4, subject to complying with "strict safety guidelines", these businesses were permitted to reopen:

  • garden centres and nurseries with curbside pick-up and delivery only;

  • lawn care and landscaping;

  • additional essential construction projects that include:

    • shipping and logistics;

    • broadband, telecommunications, and digital infrastructure;

    • any other project that supports the improved delivery of goods and services;

    • municipal projects;

    • colleges and universities;

    • childcare centres;

    • schools; and

    • site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;

  • automatic and self-serve car washes;

  • auto dealerships, open by appointment only;

  • golf courses may prepare their courses for the upcoming season, but not open to the public; and

  • marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

As of May 6, "easing restrictions" for retail stores and "essential construction" was initiated, as follows and subject to "applicable health and safety guidelines":

  • May 8, 2020, at 12:01 a.m. – garden centres and nurseries will be able to open for in-store payment and purchases;

  • May 9, 2020, at 12:01 a.m. – hardware stores and safety supply stores will be permitted to open for in-store payment and purchases; and

  • May 11, 2020, at 12:01 a.m. – retail stores with a "street entrance" can begin offering curbside pickup and delivery.

In addition, "expanding essential construction" is permitted to allow below-grade multi-unit residential construction projects (such as apartments and condominiums). Existing above-grade projects may also continue.

“STRICT” HEALTH AND SAFETY GUIDELINES

Eligible retailers preparing for in-store purchases are expected to operate under the same health and safety guidelines that apply to retailers in the essential services sector, including grocery stores and pharmacies.

Eligible businesses offering curbside pickup and delivery services are expected to meet strict health and safety guidelines comparable to those applying to the essential services sector.

These “strict safety guidelines” expected to be followed are guided by resources made available by Ministry of Labour in Ontario (the “MOL”) and various provincial Health and Safety Associations (“HSAs”) in Ontario, including guidelines published by:

  • the Infrastructure Health and Safety Association (IHSA) for the construction, electrical and utilities, aggregates, natural gas, ready-mix concrete and transportation sectors;

  • the Public Service Health and Safety Association (PSHSA) for hospitals, nursing and retirement homes, residential and community care facilities, universities and colleges, school boards, libraries and museums, municipalities, the provincial government and its agencies and fire and paramedic services;

  • the Workplace Safety North (WSN)  for the forestry, mining, smelting, refining, paper, printing and converting sectors; and

  • the Workplace Safety and Prevention Services (WSPS) for the agriculture, manufacturing and service sectors.

The MOL has also released "guidance notes" for employers in five sectors:

The MOL has also published sector-specific posters for both employers and employees to promote infectious disease prevention strategies in certain sectors.

These posters and sector-specific health and safety guidelines can be downloaded and printed from the MOL’s Web site.

NEXT STEPS FOR ELIGIBLE BUSINESSES

  • "strict compliance" with the new health and safety directives is required for employers to reopen and operate – at the very least, employers should:

    • review, develop and implement appropriate training on industry-specific health and safety requirements, pursuant to the Framework;

    • post in the workplace any relevant or applicable posters or guidelines that are published by the MOL and/or applicable HSAs;

    • conduct periodic reviews and audits of materials and guidelines published by the MOL and applicable HSAs to ensure ongoing compliance and up-to-date training; and

    • maintain records of any and all COVID-19-specific training provided to employees;

  • these new guidelines are not "limited" to businesses that have recently re-opened, or are intending to re-open; rather, they will impact businesses that have continued to operate throughout Ontario’s State of Emergency, either as a result of being deemed essential, or as a result of not having been ordered to close – these businesses should continue to conduct their operations as they have to date, ensuring ongoing compliance with any relevant or applicable health and safety guidelines developed by Ontario;

  • whether reopening or continuing to operate, employers remain statutorily required to "take every precaution reasonable in the circumstances" for the protection of workers and other individuals at the workplace;

  • employers should take steps to achieve and, whenever possible, exceed the basic protections required by the guidelines and occupational health and safety legislation in Ontario to safeguard workers and minimize any risk of non-compliance with health and safety requirements; and  

  • failing to comply with any existing or newly promulgated health and safety requirements may lead to significant penalties, including fines, compliance orders, stop-work orders, risk of prosecution and/or imprisonment.  

Despite all of this, things may change. Nothing is certain during the pandemic. Be watchful for ongoing updates and modifications, particularly if infections may increase during phase one. 

CKL businesses should proactively ensure that they have taken all reasonable steps to adhere to applicable guidelines, emergency orders and other potential sources of liability, including:

  • compliance with health and safety protocols; and

  • adhering to any applicable employment standards, human rights protections and employee privacy regulations, particularly regarding the collection, use and potential disclosure of personal health information.

 

read more

COVID-19 - THE LAW DOES NOT TOLERATE RACISM DURING THE PANDEMIC - BE PREPARED FOR SIGNIFICANT DAMAGES. WHAT YOU NEED TO KNOW.

Both regrettably and predictably, racism and discrimination appear to be surging with the spread of the COVID-19 virus. 

Credible sources now report that xenophobia, racially-motivated acts of discrimination and harassment towards ethnic groups is increasing. 

Through public messaging by some, including the President of the United States, COVID-19 has been referred to as the "Chinese" and the "Wuhan" virus, on the basis that it is believed to have originated in Wuhan, China. 

Doing so only serves to reinforce negative connotations, perception and stigma, inescapably encouraging more pronounced and insidious racist ideologies and prejudices directed at a specific ethnic group.

As a result, members of our Asian ethnicities have been targeted. Some report experiencing more racist acts during the pandemic, presumably attributable to existing racist views, assumptions and unconscious biases of racialized people and groups, as well as stigma, fear, or being misinformed.

There is some legal protection against these unjustified acts, promulgated by Canada's Criminal Code (hate crimes, etc.). 

In addition, employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Differential treatment related to this virus is not permissible and prohibited by Ontario's law.

COVID-19 does not discriminate against specific ethnic groups, why would we? 

We should all raise our voices against stigma and discrimination

Nervous fear is natural and expected in this crisis, but it cannot translate into short-signed, divisive hate-mongering. This is not a "Chinese" virus, as a certain leader may espouse. Rather, this is global pandemic, of which we are all, by necessity, a part.

Civility must prevail. Solidarity and altruism, not bigotry, will triumph.

We are all in this together.

 

read more

CKL BUSINESSES - AS YOU PIVOT AND DO MORE ONLINE , PROTECT YOURSELF FROM YOUR EMPLOYEES' BREACHING PRIVACY OR DATA - WHAT YOU NEED TO DO

During the pandemic, businesses and organizations in the CKL are exploring new, online delivery and operations.

With this new way to do so business, the risk of privacy and data breach increases.

Every business should have a privacy breach protocol policy, for example, delineating the steps that will promptly be taken in the event of a breach of personal information.

But did you know a business can also be held vicariously liable for an employee who, intentionally or otherwise, breaches the privacy of a customer or client?

Ontario Courts have found employers liable for vicarious liability for an employee's wrongdoing, including breach of data, if the risk of the breach was heightened because, for example, the employee was authorized to access the data without sufficient supervision or, despite not being authorized to access the data, the employee had sufficient opportunity to access the data because of the employer’s failure to put in place appropriate security controls.

As the “new normal” continues to develop, CKL businesses and organization should take steps to protect against this potential for vicarious liability, including by:

  • limiting employee access to personal and other highly confidential information on a need-to-know basis;
  • adopting policies that outline the specific bases on which personal and other highly confidential information may be accessed, used, transferred or disclosed by employees;
  • implementing a protocol for supervision of employees with access to sensitive personal and other highly confidential information;
  • putting in place technological safeguards that prevent employees from downloading customer information, other than to the extent necessary, and create alerts for supervisors when sensitive personal and other highly confidential information is accessed;
  • ensuring availability of logs recording access to personal and other highly confidential information and implement protocols for reviewing these logs for compliance with expected access and use; and
  • for highly sensitive information, consider implementing a protocol requiring two employees to sign-off to obtain access.

To manage potential exposure from vicarious liability involving a compromise of personal information, organizations should identify risks that are particular to their organization and tailor the risk management plan accordingly. 

read more

CKL BUSINESSES - THE WAGE SUBSIDY IS EXTENDED BEYOND JUNE - WHAT YOU NEED TO KNOW TODAY

May 8 - the federal Government announced the Canada Emergency Wage Subsidy (the "CEWS") will extend beyond June, 2020. More information to be announced. 

What you need to know about the CEWS: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
read more

REOPENING THE CKL - WE HAVE A SYMPTOMATIC EMPLOYEE OR CUSTOMER IN OUR STORE OR OFFICE - WHAT SHOULD WE DO? WHAT YOU NEED TO KNOW.

Employers in the CKL should develop and implement an infection prevention and control plan that includes procedures for responding when an employee, customer, or other individual present in the workplace becomes ill with symptoms of COVID-19.

The plan should include:

(i) procedures for isolating and transporting the individual home if they begin showing symptoms at the workplace; and

(ii) steps to take if an employee or other individual tests positive for COVID-19 shortly after attending the workplace.

Employers in the CKL must also report  COVID-19 transmission in the workplace to the our local health unit. 

Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers and visitors and sent home.

If the employee is able to be tested, the employee should not be allowed to return to the workplace until the employee tests negative for COVID-19 and has completed any self-isolation period mandated by public health authorities.

If the employee cannot be tested, the employee should not return to the workplace until the employee has completed any mandated self-isolation period and is free of symptoms.

read more

REOPENING THE CKL - CHEAT SHEET - SAFETY AND REPORTING REQUIREMENTS FOR CKL BUSINESSES DURING COVID-19. TIPS AND RECOMMENDATIONS TO MINIMIZE LIABILITY AND MAXIMIZE PUBLIC SAFETY.

To help stop the spread of COVID-19, everyone should comply with requirements under the Occupational Health and Safety Act and with associated regulations and public health directives issued by the Chief Medical Officer of Health.

Protecting yourself and your co-workers:

Coronaviruses are spread through close contact with others. Here are some helpful tips to help prevent the spread of germs at home or in the workplace:

  • Wash your hands often with soap and water or alcohol-based hand sanitizer.
  • Sanitize often, between each transaction if possible.
  • Wash or sanitize hands after making or receiving deliveries.
  • Sneeze and cough into your sleeve.
  • If you use a tissue, discard immediately and wash your hands afterward.
  • Avoid touching your eyes, nose or mouth.
  • Avoid contact with people who are sick.
  • Stay home if you are sick.
  • Avoid high-touch areas, where possible, or ensure you clean your hands afterwards.
  • Where possible, wear gloves when interacting with high-touch areas. Do not touch your face with gloved hands. Take care when removing gloves. Ensure you wash your hands after removing them.
  • Wash your clothes as soon as you get home.
  • If you are ill: notify your supervisor immediately, complete the self-assessment and follow the instructions.

Physical distancing (two meters):

As advised by the Chief Medical Officer and public health officials physical distancing is required to control the spread of COVID-19 (coronavirus).

Here are some tips employers can use to help ensure physical distancing in the workplace:

  • Minimize contact with customers.
  • Maintain a safe distance while handing goods and taking payment, minimize or eliminate handling of cash and eliminate at-the-door payment methods.
  • Assign staff to ensure customers are maintaining safe physical distances in congested areas like entrances/exits and check-outs.
  • Add floor markings and barriers to manage traffic flow and physical distancing.
  • Do not accept re-usable bags or containers that are to be handled by your staff.
  • Install barriers between staff and customers; this can include plexiglass or markings on the floor to ensure at least 2 meters between customer and cashier.
  • Stagger start times, shifts, breaks, and lunch times.
  • Restrict the number of people on-site and where they are assigned to work.
  • Control site movement (by limiting the potential for workers to gather).
  • Limit the number of people working in one space at the same time.
  • Minimize the number of people using each piece of equipment in instances where sharing equipment cannot be avoided.
  • Hold meetings in an outside or large space.
  • Limit unnecessary on-site interaction between workers, and with outside service providers.

Workplace sanitation:

Coronaviruses are spread person to person through close contact. While employers always have an obligation to maintain clean worksites, that obligation is under sharper focus due to COVID-19.

Here are some tips for employers to use:

  • Provide ways to properly clean hands, by providing access to soap and water or alcohol-based hand sanitizer.
  • Provide employees with hand sanitizer for their use only.
  • Have all employees and visitors wash their hands thoroughly with soap and water before entering the workplace and after contact with surfaces others have touched.
  • Include handwashing before breaks and at shift changes.
  • Provide a safe place for customers to dispose of used sanitizing wipes and personal protective equipment.
  • Clean washroom facilities.
  • Sanitize commonly-touched surfaces or areas such as entrances, counters, washrooms and kitchens.
  • Sanitize shared equipment (where sharing of equipment cannot be avoided).
  • Post hygiene instructions in English or French and the majority workplace language so everyone can understand how to do their part.
  • Introduce more fresh air by increasing the ventilation system’s air intake or opening doors and windows. Avoid central recirculation where possible.

Adjust onsite and production schedules:

Lowering staff levels on job sites may be required to maintain appropriate physical distancing.  Employers should look at how they can adjust their production schedules to support physical distancing, where possible.

Here are some tips for employers to follow:

  • Limit the number of workers to critical number by staggering work schedules.
  • Consider job rotation.
  • Postpone projects and tasks that don’t need to be done now.
  • Reschedule any unnecessary visits to the workplace by supply chain partners, vendors or others who don’t need to be there now.
  • Ensure sanitation of sites and workspaces.
  • Carry out site planning to facilitate appropriate physical distancing between workers.
  • Establish rules for any work that requires workers within two metres of each other. This could include full personal protective equipment.
  • Offer work-site mobility and transportation, including hoist operations.

Track your workforce:

Due to the delayed period of COVID-19 (coronavirus) spread, it is important to track where workers have been. If an employee tests positive for COVID-19, the local public health unit will ask employers to provide information on where the employee worked as well as the contact information of any other employee who may have been exposed. Employers will provide that information and Public Health Units will respond.

Reporting illness:

The symptoms of COVID-19 are similar to other illnesses, including the cold and flu. At this time, it is recommended that any worker who has symptoms related to cold, flu or COVID-19 be sent home. Public Health Ontario has provided helpful guidance on self-monitoring and self-isolation.

In addition, employers should advise these workers to complete the online self-assessment or call either:

  • Telehealth: 1-866-797-0000
  • their primary care provider (for example, family physician)

CKL Health Unit Order:

On April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under the Health Protection and Promotion Act. This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19
  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test
  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or
  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • Isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.
  • Remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 
  • During the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.
  • Keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.
  • Seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.

Workers with COVID-19:

If you believe one of your workers may have COVID-19 or has tested positive for the disease, you should conduct a risk assessment.

Based on the results, ministry inspectors may require the employer to:

  • inform co-workers who were exposed and send those workers home for two weeks
  • ask those workers to self-isolate and self-monitor and report any COVID-like illness to their employer
  • shut down the job site while the affected workplace and equipment are disinfected
  • implement other measures based on the advice of public health officials

Getting information on infection prevention and control:

Employers can contact local public health units for questions on workplace infection prevention and control related to COVID-19 infections.

Share information:

It is important that all parties in a workplace communicate their roles and responsibilities. Employers must ensure health and safety policies are updated and posted for all workers to see. Using industry resources, including the Workplace Safety and Prevention Services (WSPS), will improve on-site understanding.

Post your policies:

All employers must post and communicate COVID-19 policies to workers.

These policies should cover how the workplace will operate, including, but not limited to:

  • the sanitization of the workplace
  • how workers report illnesses
  • how to ensure physical distancing
  • how work will be scheduled
  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

If an employer is advised that a worker has tested positive for COVID-19 due to exposure at the workplace, or that a claim has been filed with the Workplace Safety and Insurance Board (WSIB), the employer is required to notify:

  • the Ministry of Labour, Training and Skills Development in writing within four days
  • the workplace joint health and safety committee or a health and safety representative
  • a trade union (if applicable)
read more

CKL FRONTLINE WORKERS - TEMP PANDEMIC PAY - NOW IN EFFECT - HOW MUCH, HOW PAID, WHO IS ELIGIBLE. WHAT YOU NEED TO KNOW.

Temporary pandemic pay is aimed at helping frontline staff who are experiencing severe challenges and are at heightened risk during the COVID-19 outbreak.

It is a targeted program designed to support employees who work in congregate care settings or primarily with vulnerable populations, where maintaining physical distancing is difficult or not possible.

The goals of this temporary pandemic pay are to:

  • provide additional support and relief to frontline workers
  • encourage staff to continue working and attract prospective employees
  • help maintain safe staffing levels and the operation of critical frontline services

How much you can get

There are two kinds of pandemic pay you may be eligible for:

  • a temporary top-up based on your hourly wages
  • monthly lump sum payments

Pandemic pay on hourly wages

If you are eligible, you will receive $4 per hour worked on top of your existing hourly wages, regardless of how much you already make.

All eligible workers will receive this amount automatically.

Monthly lump sum payments

If you work at least 100 hours in a designated 4-week period, you will also be eligible to receive an additional lump sum payment of $250 for that period.

The designated 4-week periods are:

  • April 24, 2020 to May 21, 2020
  • May 22, 2020 to June 18, 2020
  • June 19, 2020 to July 16, 2020
  • July 17, 2020 to August 13, 2020

This means you may receive up to a total of $1,000 in lump sum payments over these 16 weeks.

Eligible staff will also be paid retroactively for hours worked during this period.

How to get paid

If you are an eligible frontline worker, you will receive the temporary hourly pandemic pay directly from your employer.

The government is still working out how lump sum payments will be made. 

For employers

Employers are not being asked to apply for pandemic pay; eligible employers will be contacted by May 15.

Who is eligible

Temporary pandemic pay is designed to support eligible full- and part-time employees. It does not apply to management.

Eligibility is not dependent on whether there is a COVID-19 outbreak in the location you work in.

To receive pandemic pay, you must work in both an eligible:

  • role (i.e. be an eligible worker)
  • workplace

Eligible workplaces and workers include those listed below, by sector.

Health care

To be eligible for pandemic pay you must be an eligible worker who works in an eligible workplace providing publicly-funded services.

Eligible workplaces

  • All hospitals in the province, including small rural hospitals, post-acute hospitals, children’s hospitals and psychiatric hospitals
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    • porters
    • cooks
    • custodians
    • housekeeping
    • laundry 
  • Developmental services workers
  • Mental health and addictions workers
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health nurses

Long-term care

Eligible workplaces

  • Long-term care homes (including private, municipal and not-for-profit homes)

Eligible workers

  • All non-management publicly funded employees and workers in eligible workplaces (full-time, part-time and casual)

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

  • All non-management employees working on site in licensed retirement homes (full-time, part-time and casual)

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities and shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licenced children’s residential sites
  • Directly operated residential facility – Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite and drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (such as developmental service workers, staff in licenced children’s residential sites, intake and outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains

Base salaries, benefits and pensions

The temporary hourly pandemic pay and lump sum payments:

  • are non-pensionable earnings
  • are not part of an employee’s base salary
  • have no impact on benefits paid by employers

The temporary pandemic pay and lump sum payments do not impact your eligibility for Employment Insurance (EI) or the Canada Emergency Response Benefit (CERB).

Vacation and leaves

The $4 hourly top-up and lump sum payment eligibility only apply to the hours you actually work.

It does not apply to time you were not in the workplace for any reason, including:

  • vacation
  • any authorized paid leave, including sick leave
  • time and benefits awarded under the Workplace Safety and Insurance Act, 1997

Union dues

Some unions will not be collecting union dues on the temporary pandemic pay.

Consult with your workplace bargaining agent to discuss their particular arrangements.

Unless you receive specific direction from your union, you must continue to pay any union dues required by your collective agreement.

read more

REOPENING THE CKL - SHOULD BUSINESSES REQUIRE PPE FOR EMPLOYEES? WHAT YOU NEED TO KNOW.

Should businesses in the CKL use personal protective equipment ("PPE") for employees, such as non-medical face masks, gloves and eye protection? 

Yes, PPE is an option, but only when the risk and hazards related to COVID-19 cannot be eliminated through following Ontario's new health and safety guidelines and other governmental orders and directions. 

The Ontario government advises us that PPE should only be used when all other mitigation measures have been implemented, which can be found here: 

https://www.wsps.ca/WSPS/media/Site/Resources/Downloads/covid-19-office-health-and-safety-guidance.pdf?ext=.pdf

If it is to be used, employees must also be trained on how to use PPE correctly, including fit, use, putting it on and taking it off, maintenance, cleaning, and disposal, as well as training on the limitations of PPE.

If PPE is necessary to control risks related to COVID-19, employers should consider what, if any, PPE the employer can provide. With all forms of PPE in high demand, any reopening plan that requires PPE should take into account what forms of PPE the employer has the ability to obtain.  Regardless of the measures that are taken, it is important to ensure that safety measures are based on governmental and public health guidance.

Non-medical face masks continues to spur debate and confusion publicly. Canada’s Chief Medical Officer continues to affirm that individuals should wear a non-medical face mask when they are unable to maintain proper physical distance from others. A non-medical mask can reduce the chance of an individual’s respiratory droplets coming into contact with others or landing on surfaces. The use of a non-medical mask is primarily to protect an employee’s co-workers, as opposed to protecting the individual wearing the mask.

If an employer wants to require or encourage its workers to wear a mask, they should supply those masks. Any provision of masks to employees should be accompanied by a policy on non-medical face masks and training for employees on how to properly use a non-medical mask, as well as their limitations (as described above).

The Government of Canada does not recommend N95 masks for the general public and medical masks such as the N95 are only recommended for health-care workers and people who are taking care of someone in close settings such as acute care, primary care and long-term care facilities.

read more

CKL BUSINESSES - LEGAL STEPS TO TAKE BEFORE RETURNING EMPLOYEES TO WORK - HOW TO DEAL WITH EMPLOYEES WHO REFUSE TO RETURN. WHAT YOU NEED TO KNOW.

Employers have a duty under Ontario’s Occupational Health and Safety Act to protect the health and safety of their employees.

They must implement preventative measures to ensure employees are not exposed to conditions potentially harmful to their health and safety at work.

Failure to ensure a safe workplace can lead to significant liability, including fines and penalties and, in serious cases, criminal prosecution.

To meet their obligations to provide a safe workplace, it is critical that employers update and implement (and in some cases, post in the workplace) new health and safety policies and practices in their workplaces to address the risks associated with the COVID-19 pandemic, including as now required by Ontario’s new health and safety guidelines for all operating businesses.

So, what about employees who are to return to work?

IDENTIFY HIGH RISK EMPLOYEES

High risk employees, or those at more risk of contracting the virus or having more severe conditions, may include:

  • older adults;
  • those with weakened or compromised immune systems;
  • those with underlying medical conditions, such as: hypertension, lung-related illnesses, heart disease, cancer and diabetes.

Employers should attempt to identify potential high risk employees, including by:

  • requiring a self-disclosure policy, pursuant to which employees disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information); and
  • taking measures to mitigate the risk for self-disclosed high risk employees, such as working from home or in an isolated area.

EMPLOYEES QUALIFIED FOR A TEMPORARY LEAVE OF ABSENCE

In Ontario, employees are eligible for a job-protected, unpaid leave of absence for specific reasons related to COVID-19, such as childcare issues (resulting from the closure of schools) or taking care of a sick family member. If an eligible employee, particularly under Ontario’s infectious disease leave of absence, request this leave of absence, it must be given by the employer, which cannot terminate the employee’s employ during the entire, permitted leave period. 

If a qualified employee requests this leave of absence, employers should consider:

  • implementing work at home arrangements, to the extent possible; and
  • review their own employment agreement with the employee and their work workplace policies, to determine if the employee is entitled to paid leave of absence and, if not, recommend to the employee to apply for the CERB for income replacement benefits.

REFUSAL TO RETURN TO WORK DUE TO VIRUS CONCERNS

In Ontario, an employee has a statutory right to refuse work if he or she believes on reasonable grounds that the work constitutes a danger to his or her health and safety.

If an employee refuses to return to work due concerns about personal safety:

  • the employee must report the hazard to the employer;
  • the employer must ensure it is operating in accordance with Ontario’s new health and safety guidelines;
  • the employer must take any necessary corrective action in a timely manner to address the hazard reported;
  • if an employee believes their workplace remains unsafe, the employee may make a complaint to the Ministry of Labour of Ontario; and
  • Ministry Inspectors have authority to enforce the legislation in several ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.

In every case, employers should ensure their accommodation policies and practices effectively address each issue on a case-by-case basis fairly, reasonably and in accordance with their legal obligations, pursuant to Ontario’s Human Rights Code. The Ontario Human Rights Commissions has clearly indicated that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace, such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).

read more

REOPENING THE CKL - LEGAL TIPS AND RECOMMENDATIONS TO RESTAURANT/FOOD AND RETAIL BUSINESSES TO MINIMIZE LIABILITY AND PROTECT PUBLIC SAFETY.

Everyone working in the restaurant and food services sector in the CKL needs to consider how to prevent the spread of COVID-19 at work, including:

  • cashiers

  • chefs

  • dishwashers

  • administrators

  • drive-thru operators

  • maintenance staff

To help stop the spread of COVID-19, everyone should comply with requirements under the Occupational Health and Safety Act and with associated regulations and public health directives issued by the Chief Medical Officer of Health.

Protecting yourself and your co-workers:

Coronaviruses are spread through close contact with others. Here are some helpful tips to help prevent the spread of germs at home or in the workplace:

  • Wash your hands often with soap and water or alcohol-based hand sanitizer.

  • Sanitize often, between each transaction if possible.

  • Wash or sanitize hands after making or receiving deliveries.

  • Sneeze and cough into your sleeve.

  • If you use a tissue, discard immediately and wash your hands afterward.

  • Avoid touching your eyes, nose or mouth.

  • Avoid contact with people who are sick.

  • Stay home if you are sick.

  • Avoid high-touch areas, where possible, or ensure you clean your hands afterwards.

  • Where possible, wear gloves when interacting with high-touch areas. Do not touch your face with gloved hands. Take care when removing gloves. Ensure you wash your hands after removing them.

  • Wash your clothes as soon as you get home.

  • If you are ill: notify your supervisor immediately, complete the self-assessment and follow the instructions.

Physical distancing (two meters):

As advised by the Chief Medical Officer and public health officials physical distancing is required to control the spread of COVID-19 (coronavirus).

Here are some tips employers can use to help ensure physical distancing in the workplace:

  • Minimize contact with customers.

  • Maintain a safe distance while handing goods and taking payment, minimize or eliminate handling of cash and eliminate at-the-door payment methods.

  • Assign staff to ensure customers are maintaining safe physical distances in congested areas like entrances/exits and check-outs.

  • Add floor markings and barriers to manage traffic flow and physical distancing.

  • Do not accept re-usable bags or containers that are to be handled by your staff.

  • Install barriers between cashiers and customers; this can include plexiglass or markings on the floor to ensure at least 2 meters between customer and cashier.

  • Stagger start times, shifts, breaks, and lunch times.

  • Restrict the number of people on-site and where they are assigned to work.

  • Control site movement (by limiting the potential for workers to gather).

  • Limit the number of people working in one space at the same time.

  • Minimize the number of people using each piece of equipment in instances where sharing equipment cannot be avoided.

  • Hold meetings in an outside or large space.

  • Limit unnecessary on-site interaction between workers, and with outside service providers.

Workplace sanitation:

Coronaviruses are spread person to person through close contact. While employers always have an obligation to maintain clean worksites, that obligation is under sharper focus due to COVID-19.

Here are some tips for employers to use:

  • Provide ways to properly clean hands, by providing access to soap and water or alcohol-based hand sanitizer.

  • Provide cashiers, drive-through operators, delivery staff and other customer-facing staff with hand sanitizer for their use only.

  • Have all employees and visitors wash their hands thoroughly with soap and water before entering the workplace and after contact with surfaces others have touched.

  • Include handwashing before breaks and at shift changes.

  • Provide a safe place for customers to dispose of used sanitizing wipes and personal protective equipment.

  • Clean washroom facilities.

  • Sanitize commonly-touched surfaces or areas such as entrances, counters, washrooms and kitchens.

  • Sanitize shared equipment (where sharing of equipment cannot be avoided).

  • Post hygiene instructions in English or French and the majority workplace language so everyone can understand how to do their part.

  • Introduce more fresh air by increasing the ventilation system’s air intake or opening doors and windows. Avoid central recirculation where possible.

Adjust onsite and production schedules:

Lowering staff levels on job sites may be required to maintain appropriate physical distancing.  Employers should look at how they can adjust their production schedules to support physical distancing, where possible.

Here are some tips for employers to follow:

  • Limit the number of workers to critical number by staggering work schedules.

  • Consider job rotation.

  • Postpone projects and tasks that don’t need to be done now.

  • Reschedule any unnecessary visits to the workplace by supply chain partners, vendors or others who don’t need to be there now.

  • Ensure sanitation of sites and workspaces.

  • Carry out site planning to facilitate appropriate physical distancing between workers.

  • Establish rules for any work that requires workers within two metres of each other. This could include full personal protective equipment.

  • Offer work-site mobility and transportation, including hoist operations.

Track your workforce:

Due to the delayed period of COVID-19 (coronavirus) spread, it is important to track where workers have been. If an employee tests positive for COVID-19, the local public health unit will ask employers to provide information on where the employee worked as well as the contact information of any other employee who may have been exposed. Employers will provide that information and Public Health Units will respond.

Reporting illness:

The symptoms of COVID-19 are similar to other illnesses, including the cold and flu. At this time, it is recommended that any worker who has symptoms related to cold, flu or COVID-19 be sent home. Public Health Ontario has provided helpful guidance on self-monitoring and self-isolation.

In addition, employers should advise these workers to complete the online self-assessment or call either:

  • Telehealth: 1-866-797-0000

  • their primary care provider (for example, family physician)

Workers with COVID-19:

If you believe one of your workers may have COVID-19 or has tested positive for the disease, you should conduct a risk assessment.

Based on the results, ministry inspectors may require the employer to:

  • inform co-workers who were exposed and send those workers home for two weeks

  • ask those workers to self-isolate and self-monitor and report any COVID-like illness to their employer

  • shut down the job site while the affected workplace and equipment are disinfected

  • implement other measures based on the advice of public health officials

Getting information on infection prevention and control:

Employers can contact local public health units for questions on workplace infection prevention and control related to COVID-19 infections.

Share information:

It is important that all parties in a workplace communicate their roles and responsibilities. Employers must ensure health and safety policies are updated and posted for all workers to see. Using industry resources, including this one and those produced by the Workplace Safety and Prevention Services (WSPS), will improve on-site understanding.

Post your policies:

All employers must post and communicate COVID-19 policies to workers.

These policies should cover how the workplace will operate, including, but not limited to:

  • the sanitization of the workplace

  • how workers report illnesses

  • how to ensure physical distancing

  • how work will be scheduled

  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

If an employer is advised that a worker has tested positive for COVID-19 due to exposure at the workplace, or that a claim has been filed with the Workplace Safety and Insurance Board (WSIB), the employer is required to notify:

  • the Ministry of Labour, Training and Skills Development in writing within four days

  • the workplace joint health and safety committee or a health and safety representative

  • a trade union (if applicable)

 

read more

UPDATE - USING NON-MEDICAL MASKS IN THE CKL. WHEN, HOW TO CLEAN - WHAT YOU NEED TO KNOW.

The best way to stop the spread of COVID-19 is by staying home and avoiding close contact with others outside of your household.

You may consider using a face covering (non-medical mask such as a cloth mask or bandana) to reduce the risk of transmission of COVID-19 in areas where physical distancing may be challenging or not possible, such as:

  • public transit
  • smaller grocery stores or pharmacies
  • when you are receiving essential services

Medical masks (surgical, medical procedure face masks and respirators like N95 masks) should be reserved for use by health care workers and first responders.

Face coverings will not protect you from getting COVID-19. The best way to protect yourself is to:

  • stay home except for essential reasons
  • avoid close contact with others and keep at least two metres from others outside your household
  • wash your hands regularly (or using alcohol-based hand sanitizer if soap and water are not available)
  • practice proper cough and sneeze etiquette (for example, sneeze and cough into your sleeve and avoid touching your eyes, nose or mouth)

Who should not use face coverings

Face coverings should not be placed on or used by:

  • children under the age of two
  • anyone who has trouble breathing
  • anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance

How to properly use, clean and dispose of face coverings

If you choose to use a face covering, you should:

  • wash your hands immediately before putting it on and immediately after taking it off (practise good hand hygiene while you are wearing the face covering)
  • make sure the face covering fits well around your nose and mouth
  • avoid moving the mask around or adjusting it often
  • avoid touching the covering while using it
  • not share it with others

Face coverings should be changed when they get damp or soiled.

When removing a face covering, you should:

  • throw it out into a lined garbage bin
  • wash your hands

Do not leave any discarded face coverings in shopping carts or on the ground.

If the face covering can be cleaned, you should:

  • put it directly into the washing machine or a bag that can be emptied into the washing machine
  • wash with other items using a hot cycle with laundry detergent (no special soaps are needed), and dry thoroughly
  • wash your hands after putting the face covering into the laundry

All face coverings that cannot be cleaned should be thrown out and replaced as soon as they get damp, soiled or crumpled.

read more

REOPENING THE CKL - SAFETY CONTROLS RECOMMENDED TO CURBSIDE AND DELIVERY EMPLOYEES AND BUSINESSES IN THE CKL.

For employees engaged in curbside and/or delivery services, you may have contact with customers and surfaces, such as money, credit cards and products as you work.

You could also potentially come in contact with droplets as a result of these interactions. COVID-19 can travel in respiratory droplets that are released into the environment by laughing, coughing or sneezing.

Consider where you might minimize those risks within your workplace. Consult public health information to learn the symptoms of COVID-19 infection. Recognize and report these hazards and use appropriate controls. Ensure that you or your co-workers stay home if you or they have symptoms. It’s important to take a look at where you can possibly minimize those risks within your workplace. 

SUGGESTED CONTROLS

To better protect yourself from some of these hazards consider the following options:

 Minimize or eliminate exposures by having customers pre-pay online or use credit, debit or e-transfer.

 Establish a process that minimizes time required to receive the customer and complete any curbside transaction (For example – have the customer call or otherwise notify upon arrival)

 Where possible maintain control of loading product into the vehicle. Ask the customer to remain in the vehicle and remotely open the door to limit contact with surfaces. This will aid in maintaining physical distancing and avoid un-necessary person to person interactions.

 Following completion of curbside transaction or home delivery, ensure employees sanitize their hands and any surfaces.

 Do not permit customers to use their own containers, reusable bags or boxes.

 Physical distancing (staying 2 metres away from others) requires fewer persons within an enclosed space or area. Establish clear visuals to show where the designated pickup area is located and the boundaries of the pickup area. Customers should be prohibited from exiting their vehicle while they are in the designated pickup area and stay inside their vehicle.

 Establish a procedure for delivery to customer homes that eliminates in-person interactions (For example – drop package off at door and notify customer via call or text message of delivery completion)

 Ensure physical distancing guidelines (2 meters) are met for delivery workers (For example – if two workers are required to complete a delivery and they cannot maintain physical distancing while travelling in the same vehicle, consider the use of a second vehicle or consider installing a transparent physical barrier(s) that does not impede field of vision between driver and any passengers).

 Fresh air circulation and supply should be made available wherever possible (For example – in loading and unloading areas). Increase airflow by opening doors and windows to reduce contaminant build up.

 Increase cleaning frequency – on commonly touched surfaces like material handling equipment (steering wheels, debit machines, carts, dollies, lifts). Cleaning and disinfecting should be performed regularly and after possible exposure. Be sure to follow safe practices regarding cleaning times and cleaning agents.

 Have all employees and visitors wash their hands thoroughly with soap and water, or an alcohol-based hand sanitizer if soap and water are not available, before entering the workplace, after contact with others, or with surfaces others have touched. Be sure to include handwashing before breaks, at shift changes, after making or receiving deliveries etc. Be sure to keep an adequate supply of soap, paper towels, etc.

 Provide delivery, curbside and other customer facing staff with hand sanitizer for their use only when receiving deliveries, interacting with the public etc.

 If you use a third party delivery service, ensure their training is up-to-date with the latest COVID-19 prevention knowledge as part of your contractor management process.

 Keep up to date with best practices. Consider regular times to check in with public health updates and retrain/revise practices as needed.

Screen workers regularly for health issues. If anyone develops symptoms of COVID-19, implement procedures for reporting the illness and keeping the worker away from others. For further guidance on screening procedures, consult the Ministry of Health at:

http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/2019_guidance.pdf

If these recommendations are still not enough for your workplace, as a last resort, consider Personal Protective Equipment (PPE). PPE is only effective if people wear it correctly. Ensure PPE training includes the fit, use, care, putting on and taking off, maintenance, cleaning, storing and limitations of the PPE. Some example of PPE that may be suited include:

 Gloves – The use of disposable gloves can help limit contact with surfaces, product etc. Be sure you have practices set up for suitable disposal and when gloves should be changed such as torn and or dirty. It’s also important, again, to ensure you consider other hazards that may be present in the workplace before introducing gloves – in some cases, gloves can be an ‘entanglement’ hazard and should not be worn.

 Goggles or face shields – can help with barriers and separation too. They should be assigned to people and not shared and can be used regularly if kept clean. Ensure the goggle or face shield use does not result in workers touching their faces more often because of heat or discomfort. 

read more

RELATIONSHIP BREAKDOWN - A MARRIED SPOUSE'S RIGHT TO "EQUALIZATION" MONEY - THE BASICS.

When legally married spouses separate with no reasonable prospect that they will resume cohabitation, the spouse whose net, financial worth is less than the other is likely entitled to an “equalization” payment.

An equalization payment is intended to balance and account for the inherent joint responsibilities, whether financial or otherwise, the spouses shared during the marriage, pursuant to sub-section 5(7) of Ontario’s Family Law Act (the “FLA”).  

The separated spouse whose net worth accumulated during the marriage is less is generally to one-half the difference of the spouses “net family properties”, pursuant to sub-section 5(1) of the FLA.

Net family property means the value of all the property, except property under sub-section 4(2) of the FLA (“excluded property”), that a spouse owns on the valuation date (or “date of separation”), after deducting the spouse’s debts and other liabilities and the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage. 

Usually, a spouse that is separated or divorced would make a claim for equalization when they make an Application (Form 8) in the Superior Court of Justice.

Notably only married spouses are entitled to claim equalization against the other.

Equalization is a unique property claim that the sub-section 5(1) of the FLA confers to married couples exclusively - it is a personal right.

An equalization claim is different from other property rights to which a person may be entitled otherwise upon a separation or divorce, arising from joint ownership, shares in a business or title to real property.

read more

LIFTING RESTRICTIONS IN THE CKL - WHEN SELF-ISOLATION IS LEGALLY REQUIRED IN THE CKL - HOW TO SELF-ISOLATE LEGALLY - WHAT YOU NEED TO KNOW.

As of April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under Ontario's Health Protection and Promotion Act.

This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19

  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test

  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or

  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.

  • remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 

  • during the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.

  • keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.

  • seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.

Self-isolating (quarantining) means staying at home and avoiding contact with other people to help prevent the spread of disease.

Generally, you should self-isolate if you are:

  • over 70 years of age

  • have a chronic medical condition (for example, diabetes, lung problems, immune deficiency)

  • think you may have symptoms of COVID-19

This means that you should leave your home or see other people for essential reasons only. Where possible, you should try to get what you need:

  • online

  • over the phone

  • from friends, family or neighbours

Stay home

  • do not use public transportation, taxis or rideshares

  • do not go to work, school or other public places

  • your health care provider will tell you when it is safe to leave

Limit the number of visitors in your home

  • only have visitors who you must see and keep the visits short

  • do not visit with people who are most vulnerable to COVID-19, meaning:

    • seniors

    • people with chronic medical conditions (for example, diabetes, lung problems, immune deficiency)

Avoid contact with others

  • stay in a separate room, away from other people in your home, as much as possible and use a separate bathroom if you have one

  • make sure that shared rooms have good airflow (for example, open windows)

Wear a mask

  • ensure the mask covers your nose and mouth and wear it:

    • if you leave your house to see a health care provider

    • when you are within two metres of other people

Keep distance

  • if you are in a room with other people, stay at least two metres away from each other and wear a mask that covers your nose and mouth

  • if you cannot wear a mask, people should wear a mask when they are in the same room as you

Cover your coughs and sneezes

  • cover your mouth and nose with a tissue when you cough or sneeze

  • if you don’t have a tissue, cough or sneeze into your upper sleeve or elbow, not your hand

  • throw used tissues in a wastebasket that’s lined with a plastic bag

    • the plastic bag makes it safer and easier to empty the wastebasket

    • after emptying the wastebasket, wash your hands

Wash your hands

  • wash your hands often with soap and water

  • dry your hands with a paper towel, or with your own cloth towel that no one else shares

  • use an alcohol-based hand sanitizer if soap and water are not available

Also, read the Government of Canada’s guidance on how to self-isolate if you have:

A poster identifying the requirements for self-isolation is here:

https://www.publichealthontario.ca/-/media/documents/ncov/factsheet-covid-19-how-to-self-isolate.pdf?la=en

 

 

read more

REOPENING THE CKL - MORE BUSINESSES CAN NOW GRADUALLY OPEN - RETAIL AND ESSENTIAL CONSTRUCTION - NEW HEALTH GUIDELINES MUST BE FOLLOWED. WHAT YOU NEED TO KNOW.

The Ontario government is allowing all retail stores with a street entrance to provide curbside pickup and delivery, as well as in-store payment and purchases at garden centres, nurseries, hardware stores and safety supply stores.

The business owners should review the health and safety guidelines developed by the province and its health and safety association partners.

As soon as Friday, May 8 at 12:01 a.m., garden centres and nurseries will be able to open for in-store payment and purchases, operating under the same guidelines as grocery stores and pharmacies.

 

Hardware stores and safety supply stores will be permitted to open for in-store payment and purchases as soon as 12:01 a.m. on Saturday, May 9.

On Monday, May 11 at 12:01 a.m., retail stores with a street entrance can begin offering curbside pickup and delivery, in accordance with the Ministry of Health's Guidance Document for Essential Workplaces and occupational health and safety requirements.

In addition to easing restrictions on retail, the government is also expanding essential construction to allow below-grade multi-unit residential construction projects like apartments and condominiums to begin and existing above-grade projects to continue. 

Businesses must follow public health measures and should review the workplace safety guidelines, such as promoting physical distancing and frequent handwashing, sanitizing surfaces, installing physical barriers, staggering shifts, and using contactless payment options to stop the spread of COVID-19.

The Ministry of Labour, Training and Skills Development, in partnership with Ontario's health and safety associations, has released over 60 sector-specific health and safety guidelines, including guidelines for curbside pickup and delivery services. Business owners should review the guidelines and consult with local public health officials to ensure they have the information they need to protect workers, customers and the general public as the province prepares for the gradual reopening of the economy.

The government's Framework for Reopening our Province, which was released on April 27, 2020, includes guiding principles for the safe, gradual reopening of businesses, services and public spaces, and the criteria Ontario's Chief Medical Officer of Health and health experts are using to advise the government on the loosening of public health measures, including emergency orders.

 

read more

CKL FARMERS - NEW "INIITIAL" RELIEF PACKAGE ANNOUNCED TODAY. WHAT YOU NEED TO KNOW.

May 5 - Today the federal Government announced a new multi-million-dollar, multi-part package aid package for farmers and food processors.

It is an “initial announcement”, being substantially less than the $2.6 billion emergency fund requested by the Canadian Federation of Agriculture.

  • a new $77 million fund for food processors of varying size, including meat packers, to help businesses retrofit their factories and increase capacity to deal with the backlog of livestock that's been building up in parts of the county
  • aid money can be used to buy personal protective equipment for workers, adapt to health protocols and support other social distancing measures;
  • aid money can also be used to make conditions safer for workers on the line, noting that occupational health and safety is a provincial issue; and
  • an additional $125 million to the AgriRecovery fund, a federal-provincial-territorial program aimed at helping farmers during disasters.
read more

UPDATE TO CKL BUSINESSES - AM I ESSENTIAL NOW? WHAT RULES MUST I FOLLOW TO OPERATE? WHAT IF I GET FINED - HOW MUCH IS IT?

As of March 24, 2020, Ontario has declared a “State of Emergency” under Ontario’s Emergency Management and Civil Protection Act.  

To date, this is in effect until May 6, 2020, but it may be extended. 

Only “essential” businesses may remain open.

DEFINITION OF “ESSENTIAL” BUSINESSES:

“Essential” businesses currently are:

  • Healthcare Services – hospitals, laboratories, health facilities, and manufacturers, wholesalers, distributors and retailers of pharmaceutical products.
  • Supply Chains – businesses which support or supply systems or services in a supply chain such as processing, packaging, distribution, delivery, and maintenance.
  • Retail and Wholesaling – businesses which sell food, pet foods, supplies necessary to maintain safety, sanitation, and essential operations such as grocery stores or supermarkets.
  • Agriculture, Production, and Food Services – agricultural operations and food production businesses are allowed to remain open during this period. Restaurants will be allowed to open only for take-out or delivery options during this period.
  • Financial Services – banks, credit unions, insurance, capital market operations (such as stock exchanges), and businesses that provide payroll or payment processing services.
  • Utilities – utilities such as electricity generation, transmission, distribution, and storage, natural gas services, emergency first-responders (police, firefighters, paramedics), and government services.
  • Other – childcare services for essential workers, medical research facilities, telecommunications and media, and long-term care facilities.

The full list of essential businesses in Ontario is here: https://www.ontario.ca/laws/regulation/200082

The Province of Ontario also announced that effective May 4, 2020, certain other businesses not included on this list of “essential” services will be allowed to gradually re-open business operations.  These businesses include garden centres and nurseries, lawn care and landscaping services, additional construction projects for telecommunications, shipping, schools, and construction site development.  The full list of these businesses is here: https://news.ontario.ca/opo/en/2020/05/certain-businesses-allowed-to-reopen-under-strict-safety-guidelines.html

PENALTIES FOR FAILING TO COMPLY:

Businesses which do not belong to a category of “essential” business and continue to operate during this period risk incurring the following penalties under the Emergency Management and Civil Protection Act:

  • an individual could be subject to a fine of up to $100,000 and imprisonment of up to one year;
  • an individual who is a director or officer of a corporation could be subject to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and
  • a corporation could be subject to a fine of not more than $10,000,000.

Municipal by-law officers and municipal or provincial police officers are enforcing this emergency order. They are empowered to issue warnings, fines, or summonses to “non-essential” businesses and their directors, officers, and employees which maintain business operations during this mandatory closure. Municipalities may also have specific by-laws which further limit business operations within these jurisdictions.

read more

CKL BUSINESSES - HOW TO AVOID BEING FINED FOR OPERATING AS "NON-ESSENTIAL" OR FAILING TO COMPLY WITH THE NEW HEALTH AND SAFETY GUIDELINES - WHAT YOU NEED TO KNOW

AVOIDING PENALTIES FOR UNLAWFULLY OPERATING:

The best defence against a warning, fine or summons is to argue that the business is in fact within a category of “essential” businesses and, as a result, the penalty is unwarranted.

Some possible measures to reduce the risk of incurring a penalty include:

  • evaluating whether all or portions of your business may qualify as “essential”, as this definition becomes amended from time to time - while it may not be possible to open all of your business operations, it may be possible to partially open those parts of your business which are “essential”;
  • identifying the key employees who are needed to work on-site and offer them defined hours of operations, have in place safety measures to limit physical contact, and make sure that their work qualifies as an “essential” category of business; and
  • providing key employees with letters indicating that they are employees at an essential business and ensure they have proper credentials to confirm to property managers or authorities in case they are questioned by by-law enforcement officers or police officers.

On April 30, 2020, the Province of Ontario provided guidelines for certain business sectors to ensure that the eventual reopening of Ontario’s economy can be done safely.  The six specifically listed sectors are construction, food processing, restaurant and food services, agriculture, manufacturing and long-term care.

Ontario’s sector-specific guidelines include general public health recommendations including holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.  These guidelines also recommend installing plexiglass barriers, increasing the air intake on heating, ventilation and air conditioning systems to increase air flow, maintaining frequent cleaning for public spaces, and promoting physical distancing.  Businesses that are considering plans for re-opening would benefit from considering and implementing these provincial guidelines.  

For more information from us about these new health and safety guidelines and the accompanying posters for your workplace, go here: http://wardlegal.ca/31587872329978

read more

CKL PARENTS - ONE TIME EXTRA $300 FOR CANADA CHILD BENEFIT IN MAY. WHAT YOU NEED TO KNOW.

May 3 – the federal Government announced that families receiving the Canada Child Benefit (CCB) will get $300 extra per child in May to help them deal with the added pressures of COVID-19.

Eligible families will automatically receive this one-time increase as part of their scheduled CCB payment in May.

Those who already receive the CCB do not need to re-apply for this one-time increase.

In addition to this one-time CCB increase, individuals and families with low and modest incomes may receive a special top-up payment through the Goods and Services Tax credit.

read more

IF MY CKL BUSINESS IS FINED FOR OPERATING UNLAWFULLY, OR NOT FOLLOWING THE NEW HEALTH AND SAFETY GUIDELINES, CAN I FIGHT IT? HOW? WHAT YOU NEED TO KNOW

CHALLENGING A FINE FOR NON-COMPLIANCE:

Even if you maintain a defensible position for operating a non-essential business during the lockdown, including demonstrating compliance with the new health and safety guidelines, a by-law officer or police officer may still issue a ticket to employees or businesses for non-compliance with the provincial lockdown order.

So far, in the CKL, there is no specific legal Court to challenge or dispute these tickets.

As a result, a business or individual will have to challenge a fine or other penalty issued under the Emergency Management and Civil Protection Act through Provincial Offences Court or, where available, municipal administrative bodies for municipal by-law offences related to COVID-19.

It may be possible in the CKL to request, if you were ticketed by a municipal by-law officer, an early resolution meeting with a prosecutor to resolve the matter without the need for a trial or request a trial at Provincial Offences Court.  

It is hoped that the CKL will facilitate and encourage alternative dispute resolution for these types of offences.

Formal challenges to tickets and fines issued by by-law officers or police officers will likely not be heard until Provincial Offences Court resumes in-person hearings or commences virtual hearings.  

This said, during this emergency period, the Province of Ontario has suspended limitation periods applicable to Ontario court matters retroactive to March 16, 2020 until the order is revoked, so in-person challenges will not likely be heard until the Courts re-open. 

When Provincial Offences Court reopens and hears cases again, a ticketed business or individual can file an appeal for convictions within thirty days of the conviction date.

read more

CKL POST-SECONDARY STUDENTS AND GRADUATES - UPDATE ON YOUR EMERGENCY BENEFITS AND WHEN AVAILABLE

Very recently Bill C-15:  An Act respecting Canada emergency student benefits (coronavirus disease 2019), the legislation that implements the government's Canada Emergency Student Benefit ("CESB"), became law.

Under the CESB, eligible post-secondary students and recent graduates will receive $1,250 a month from May to August 2020, while those with dependents or disabilities will receive $2,000 per month (an increase from the originally announced $1,750).

Applications for the benefit are expected to be available by mid-May 2020.

read more

CKL BUSINESSES - TO REOPEN, CONSIDER TAKING YOUR EMPLOYEES' TEMPS (THERMAL TESTING) TO PROMOTE SAFETY, PROTECT PRIVACY AND MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

read more

CKL BUSINESSES - THE RISKS FOR IMPROPERLY GETTING THE NEW WAGE SUBSIDY - REPAYMENT, INTEREST, STEEP FINES AND CRIMINAL LIABILITY - GET ACCOUNTING HELP WHEN APPLYING - WHAT YOU NEED TO KNOW

CANADA EMERGENCY WAGE SUBSIDY (CEWS) – WHAT YOU NEED TO KNOW

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”

RISKS – WHAT IF I GET IT AND I WAS NOT ENTITLED TO IT?

Here is an excellent summary of what can happen, in terms of both civil and criminal liability, for improperly obtained the CEWS during the pandemic, which penalties could include:

[1] a requirement to repay the CEWS amount received, in full, plus interest;

[2] monetary and criminal penalties for making false statements to the federal government;

[3] civil liability, including under Canada’s Income Tax Act;

[4] criminal liability under Canada’s Criminal Code and the Income Tax Act;

[5] potential personal liability to directors of corporations that apply for and receive the CEWS;

[6] monetary penalties for “artificial transactions”; and

[7] third-party civil penalties.

Continue reading……….

“The Canada Revenue Agency (CRA) has indicated that it will be publishing a list of all employers that have applied for the subsidy, such public listing being partially motivated as a way to dissuade fraudulent claims. The government has repeatedly cautioned that the subsidy requires "good faith and trust between everyone involved" and that large penalties may apply where employers receiving the CEWS are ultimately found not to be eligible. For some employers, penalties may not be a concern—their eligibility for the CEWS is clear, but, for others, their unique circumstances make their eligibility for, and the scope of, the CEWS somewhat uncertain and the risk of penalties becomes a significant concern. The purpose of this blog post is to describe the consequences to employers who receive the CEWS but are ultimately found not to be eligible for all or a portion of the subsidy received. It is our hope that the summary below will provide some comfort to those employers faced with concerns as to their entitlement for the CEWS and help determine a path forward.

Background: Uncertainties Abound

The CRA has indicated that it will be implementing both pre- and post-payment verification work for the CEWS. The CRA has issued an application guide, various FAQs and further guidance is anticipated both through CRA pronouncements and potential regulations. Notwithstanding these publications, there remain many areas of uncertainty, which is perhaps not surprising given how quickly the legislation was rolled out and its complexity.

Of particular note, a key requirement of eligibility for the CEWS is that the employer experience a decline in "qualifying revenue" for March 2020 of at least 15 percent (as compared to the reference period of March 2019 or average of January and February 2020) and for April or May 2020 of at least 30 percent (as compared to the reference period of April or May 2019 or average of January and February 2020). For many employers, the calculation of revenue for this purpose is far from straight-forward. Open issues include what items should be excluded as "extraordinary items"; the treatment of items typically included in "gross revenue" for tax purposes but not typically included in computing revenue under "normal accounting standards"; the treatment of dividends, interest and other investment income; calculation issues in consolidated groups, and more. Uncertainties can also arise in determining what, if any, portions of an employee's remuneration are to be included or excluded from the CEWS calculation. In some circumstances, it is also difficult to confirm, prior to the receipt of the CEWS, that none of the particular anti-avoidance rules in the legislation apply.

Over time, many of the remaining issues will be clarified. But, until then, some employers face a difficult choice—should they apply for the CEWS in circumstances where their entitlement may not be 100% clear or should they wait for further clarifying guidance and delay their receipt of funds crucial to maintaining their business operations and keeping their employees employed. Given the significance of the CEWS and the impact on an employer's business, we expect that many employers will want to make their applications sooner rather than later but making an educated decision in this matter requires an understanding of the potential penalties.

Consequences of Errors

Employers are required to keep records demonstrating their eligibility for the CEWS, including the reduction in qualifying revenue and the computation of eligible remuneration amounts. The CRA has indicated that it will use a combination of automated queries and validation within its data, follow-up phone calls to verify certain elements of the claim when necessary, and more comprehensive post-payment reviews or audits of employers who receive the subsidy. Where an employer is ultimately found to be ineligible, several potential consequences result.

Repayment of Subsidy and Interest

The CEWS will be distributed through a deeming rule in the Income Tax Act (ITA) which deems an employer that qualifies to have made an "overpayment" of the employer's liability for tax. This overpayment is deemed to arise in the applicable qualifying period (i.e., March 15 to April 11, 2020, April 12 to May 9, 2020, or May 10 to June 6, 2020). The Minister is then to assess the employer and the deemed overpayment is "refunded" to the employer. Where the employer is ultimately found to be ineligible for all or a portion of the subsidy, the employer would be assessed for the amounts owing pursuant to the regular administrative provisions in the ITA, with the result that the deemed overpayment would not arise, such that the employer will be required to repay any portion of the subsidy to which they were not entitled.

In addition to the repayment of any portion of the CEWS to which the employer is not entitled, the scheme of the ITA indicates that interest should also be payable on the amount that needs to be repaid. Although not entirely clear, it appears that such interest will begin to accrue on the "balance due-date" of the employer for the taxation year in which the subsidy was paid, which, for individual employers is generally April 30, 2021, and, for corporate employers, is two months after their tax year-end (February 28, 2021, for corporations with a December 31 year-end), and extended to three months for certain Canadian-controlled private corporations (March 31, 2021, for those Canadian-controlled private corporations with a December 31 year-end). Importantly, it does not appear that, under current rules, interest accrues from the earlier date when the CEWS is originally paid, although it is possible this may be changed through further amendment.

Note that there is no due diligence defence for either the obligation to repay the CEWS or the obligation to pay interest. Thus, employers who apply for the CEWS in the face of uncertainty in their positions must, at a minimum, be aware of the risk of that they will need to repay the subsidy and interest thereon.

Monetary and Criminal Penalties for False Statements

The government's publications on the CEWS have contained strong warnings against any false statements. For example, as part of the CEWS application, the individual who has the principal responsibility for the financial activities of the employer must attest that the application is complete and accurate in all material respects by completing an Attestation. The Attestation includes an acknowledgement that "making a false attestation is a criminal offence, and that the CEWS program rules and other rules under the Income Tax Act contain serious penalties and consequences for intentional or grossly negligence false statements and other misconduct."

Civil Liability

As a part of the ITA, the CEWS regime incorporates the ITA's penalty regime applicable to fraudulent claims or false statements, which applies in addition to the obligation to repay the CEWS. In particular, if any person knowingly, or under circumstances amounting to gross negligence, makes, or participates in the making of, a false statement or omission in its CEWS application, that person is liable to a penalty equal to the greater of $100 and 50 percent of the difference between the amount of the CEWS claimed in the application and the amount of the CEWS to which the employer is actually entitled.

To impose such penalty, the CRA must show that the CEWS application contained one or more incorrect statement that were made either:

  • knowingly—this requires that the person making the statements had actual knowledge or ought to have known that the facts disclosed in the CEWS application were incorrect; or
  • under circumstances amounting to gross negligence—this involves conduct involving either deliberate wrongdoing or a marked departure from the standard by which a reasonably careful person would prepare the CEWS application. Gross negligence has been described as a "high degree of negligence tantamount to intentional acting, an indifference as to whether the law is complied with or not."

The burden of proof lies with the CRA to show that the factual circumstances are such that the gross negligence penalties are justified. Caselaw on the application of the ITA gross negligence penalties in the context of other tax rules indicates that such penalties should be difficult to apply where the person making the CEWS application sought professional assistance in completing the application and disclosed all amounts in issue on the application. For this reason, where any material uncertainty exists with respect to the eligibility of an employer to the CEWS, employers should seek professional advice in ensuring that they have completed the appropriate due diligence and are not knowingly making a false statement.

Criminal Liability

In addition to the above civil penalty for false statements, the ITA also contains a criminal penalty regime for false statements. Under this regime, every person who obtains a refund under the ITA (which would include receipt of the CEWS) which is greater than the amount to which the person is entitled by making, or participating in the making of, a false or deceptive statement, is guilty of an offence. In addition to any other penalty provided, such person is liable: (i) on summary conviction, to a fine of between 50 percent and 200 percent of the amount of the refund claimed but not entitled to or both the fine and imprisonment for a term not exceeding two years, or (ii) if convicted on indictment, to a fine of between 100 percent and 200 percent of the amount of the excess refund and imprisonment for a term not exceeding five years.

As true criminal offences, the onus is on the CRA to prove that the false statements were made knowingly and with the requisite mental intent to obtain the CEWS in excess of the employer's actual entitlement. Although the government's publications have referred several times to this maximum imprisonment of five years, the imposition of these criminal penalties would presumably only be made in clear cases of tax evasion. As above, where an employer has sought professional advice and has made a bona fide effort to calculate its CEWS entitlements and disclose all pertinent information on its CEWS application, such criminal liability should not apply.

Director Liability for Employers that are Corporations 

Under the ITA, an officer, director or agent of a corporation who directs, authorizes, assents to, acquiesces in, or participates in the commission of an offence by the corporation is a party to, and guilty of, the same offence. That officer, director or agent, as the case may be, will be liable to the same punishment provided for the offence, whether or not the corporation has been prosecuted or convicted for it. Accordingly, where an employer that is a corporation commits the criminal offence of making false statements as described above, directors or officers of that corporation may also face liability for the fines and imprisonment described above. This may be of particular import to the person who bears responsibility for the attestation made as part of the CEWS application. Thus, officers who make such attestation, and the directors who approve the attestation, should carefully review to ensure that no false statements have been knowingly made or without the proper due diligence.

Monetary Penalty for Artificial Transactions 

The CEWS regime also includes a specific anti-avoidance rule, and additional penalties, where:

  • the employer (or a person or partnership that does not deal at arm's-length with the employer) enters into a transaction or participates in an event (or a series of transactions or events) or takes an action (or fails to take an action) that has the effect of reducing its qualifying revenues for the particular period (subject to explicitly enumerated exceptions); and
  • it is reasonable to conclude that one of the main purposes of the transaction, event, series or action is to cause the employer to qualify for the subsidy.

Where this anti-avoidance rule applies, in addition to the obligation to repay the CEWS, the employer will be liable to a penalty equal to 25 percent of the amount of CEWS it claimed.

Caselaw on similar purpose tests in other provisions of the ITA indicates that, in determining "purpose", the courts should look beyond the subjective intentions of the employer undertaking the impugned action and should look to objective manifestations of purpose. Courts have also rejected the argument that a taxpayer can have only one "main" purpose, holding that any significant purpose is a main purpose. Applying those principles to the CEWS anti-avoidance rule, where qualification for the CEWS is a substantial purpose driving the decision to enter into a transaction or take an action that reduces revenue, that purpose may well be a "main" purpose. On the other hand, some courts have held that, where transactions that are entered into for a "genuine commercial purpose" and are not deliberately structured in such a way as to obtain a tax advantage, the tax advantage should not be regarded as a main purpose of the transaction. That said, in the context of different provisions of the ITA, courts have held that, where a transaction results in a tax benefit (here, qualification for the CEWS), the CRA may reasonably infer that a purpose of the transaction is to obtain that benefit.

The key takeaway here is that employers should exercise extreme caution in undertaking any measures to intentionally reduce qualifying revenues, even if those measures also have genuine commercial purposes. If employers are undertaking any out-of-the-ordinary actions, or failing to take ordinary actions, which have the effect of reducing qualifying revenues, it will be incumbent on the employer to offer an objectively reasonable and persuasive explanation that establishes that none of the purposes of such action or inaction was to enable the employer to qualify for the CEWS.

Third-Party Civil Penalties 

The penalties described above apply to employer receiving the CEWS and, in some cases, to its directors and officers. In addition to these penalties, the ITA also contains provisions for civil penalties on third parties who make or furnish, participate in the making of or cause another person to make or furnish a statement that the person knows, or would reasonably be expected to know but for circumstances amounting to culpable conduct, to be false. These are generally categorized as a “planner penalty” and a “preparer penalty”, with the primary difference being that the “preparer penalty” can apply where the false statement could be used on behalf of the taxpayer by someone else (as opposed to only directly by the taxpayer). The penalties therefore apply fairly broadly.

The “planner penalty” is the greater of $1,000 and the third-party planner’s “gross entitlements” (i.e., amounts that the third-party planner, or a person not dealing with them at arm’s length, is entitled to receive in respect of the activity) when the false statement is made in the course of a tax planning activity or valuation. In any other case, the “planner penalty” will be $1,000. The “preparer penalty” is the greater of $1,000 and 50 percent of the taxes saved by the taxpayer by making the false statement (up to a maximum amount of the total of $100,000 and the third party person's “gross compensation”, i.e., amounts that the third-party preparer, or a person not dealing with them at arm’s length, is entitled to receive in respect of the activity).

Accordingly, if a third party files or prepares the CEWS subsidy application on behalf of an employer, such third party could be subject to a third-party penalty under the ITA, if such third party knew or would reasonably be expected to know, that the application contained false statements. For this purpose, a false statement includes a statement that is misleading because of an omission from the statement. The burden of proof lies with the CRA to show that the factual circumstances are such that the penalties are justified. In addition, the ITA contains a good faith defence, pursuant to which the advisor will not be subject to a penalty if the advisor acted in good faith on the information provided by the employer. There are a number of factors that could affect whether this good faith defence is available in any particular circumstance. Importantly, such penalties do not generally apply to employees.

Conclusion

Our expectation is that the CEWS will be administered in a purposive fashion—i.e., in a manner that provides support to employers with the goal of ensuring that workers continue to receive employment remuneration during the COVID-19 pandemic and in a manner that place employers in the position of having a strong workforce from which to continue their businesses following the pandemic.

In line with such expectation and with the caselaw on the ITA penalty provisions, penalties should not be imposed in cases where an excessive CEWS claim arises from an employer's reasonable position that is subsequently successfully challenged by the CRA. In other words, where an excessive CEWS claim arises due to a bona fide position taken in relation to an issue on which there is uncertainty, we would expect that the consequence of a claim made in error should be limited to a repayment of the CEWS and interest thereon, without the imposition of penalties. It will be important, however, that employers not take positions which are obviously unreasonable or are contrary to well established caselaw principles and that the CEWS application not contain any false or misleading statements. In areas where clarity is lacking, professional assistance should be sought.

The information in this blog is current to April 27, 2020. As of the date of writing, various reports indicate that the government is also considering additional penalties to address situations where CEWS funds are misused (e.g., not used to pay employees).”

Credit: Anu Nijhawan and Hennadly Kutsenko, Bennett Jones LLP, via Lexology.com on May 4, 2020

 

read more

REOPENING AND COMING BACK STRONGER - OUR TOP FIVE TIPS TO CKL BUSINESSES AND MANAGING EMPLOYEES DURING COVID-19

How your business manages its way through the pandemic will be a strong measure of its ability to achieve post-pandemic success.

No one knows how we’ll emerge from this.

Will corporate culture change?

Will our offices become mere hubs for periodic interaction and specific purposes, leaving many of us to continue working remotely?

Will we travel at all for work in the future.

No one knows.

But ensuring a strong, committed relationship with every employer continues to be essential during the pandemic.

Every CKL employer should consider taking this approach to its relationship management with its employees:

  • consistently reinforce a message of trust with your employees – those who feel trusted they will take greater ownership than if they feel they are being micro-managed in difficult circumstances;
  • check in regularly at a personal level - mental wellbeing is critical in these times and acknowledging possible challenges will help employees feel safe, nurtured and if necessary be more open about their challenges;
  • remain mindful of the different challenges people face when working from home (small spaces, poor IT, young children) and adapt working practices – and expectations – accordingly;
  • engage your entire workforce, not only those that are adjusting better or more efficiently; and
  • appreciate that when working remotely, old networking habits may resurface excluding certain workers - active engagement and feedback is even more critical to assure you maximize the benefits of your diverse talent pool.

Maximize the potential success of your business after this pandemic, hopefully to being more successful than ever.

read more

REOPENING THE CKL - WHAT LOCAL BUSINESSES MUST NOW DO TO PROTECT YOUR SAFETY - THE NEW NORMAL - NEW POSTERS AVAILABLE HERE

THE NEW HEALTH AND SAFETY “BEST PRACTICES” GUIDELINES FOR BUSINESSES IN THE CKL

The Government of Ontario’s general resources page for all sector-specific guidelines is here: https://www.ontario.ca/page/resources-prevent-covid-19-workplace

Specifically, these “best practices” guidelines apply to the manufacturing, food manufacturing/processing, restaurant/food service and agricultural sectors.

Today, these businesses in the CKL will be permitted to reopen operations, while following health and safety guidelines:

  • garden centres and nurseries with curbside pick-up and delivery only;
  • lawn care and landscaping;
  • additional essential construction projects that include:
    shipping and logistics;
    broadband, telecommunications, and digital infrastructure;
    any other project that supports the improved delivery of goods and services;
    municipal projects;
    colleges and universities;
    site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
    child care centres; and
    schools.
  • automatic and self-serve car washes;
  • auto dealerships, open by appointment only;
  • golf courses may prepare their courses for the upcoming season, but not open to the public; and
  • marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

The guidelines are arranged in a similar way for each sector, with dozens of specific recommendations listed under the following headings (among others):

  • protecting yourself and your co-workers (e.g. by hand-washing and staying home when ill);
  • physical distancing (e.g. by holding team meetings outdoors or installing plexiglass barriers);
  • workplace sanitation (e.g. by providing hand sanitizer, improving ventilation and staggering work schedules);
  • workplace tracking (e.g. by keeping records of where each worker has been in the workplace);
  • reporting illness (e.g. by encouraging workers to do Ontario’s online self-assessment);
  • sharing information (e.g. by using up-to-date workplace posters re COVID-19 policies).

The new guidelines stress across all business sectors:

1. appropriate physical distancing (2m / 6’), eliminating pay-at-the-door options, holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage customer traffic flow;

2. wherever possible, changes to the workplace, like installing plexiglass barriers, increasing the air intake on building heating, ventilation, and air conditioning (HVAC) systems to increase air flow, and using boot sanitizing trays; and

3. promoting proper workplace sanitation, providing personal protective equipment, substituting dry dusting with vacuuming, ensuring customer-facing staff are given hand sanitizer, providing a place to dispose of sanitizing wipes, and enforcing hand washing before and after breaks.

Depending on the industry sector, additional recommendations may also be made.

For example, for restaurants (and food manufacturers with associated retail operations), there is a recommendation against accepting reusable bags from customers and a recommendation that staff be assigned to monitor physical distancing by customers.

Generally, however, the recommendations are fairly similar across all of the sectors.

HEALTH AND SAFETY POSTERS

The government is also making a range of safety posters available for downloading.

Go here: https://files.ontario.ca/mltsd-2/mltsd-essential-sector-posters-food-manufacture-processing-worker-en-8.5x11-2020-04-30.pdf

Also go here: https://www.ontario.ca/page/resources-prevent-covid-19-workplace

INSPECTION AND ENFORCEMENT

These guidelines are recommendations, but will be monitored and enforced by Ontario’s Ministry of Labour inspectors.

Ontario is committing 58 additional workplace inspectors to the effort, who will focus primarily on communicating best practices to employers.

read more

CKL BUSINESSES ALLOWED TO OPEN ON MONDAY - WORKPLACE RULES TO FOLLOW - WHAT YOU NEED TO KNOW

May 1 - The Ontario government is allowing certain businesses and workplaces to reopen, provided they comply with strict public health measures and operate safely during the COVID-19 outbreak.

Those permitted to start up include seasonal businesses and some essential construction projects.

For this purpose, the government, in partnership with Ontario's health and safety associations, has developed more than 60 guidelines in response to COVID-19.

These sector-specific measures will help employers prepare their workplaces so they can be reopened safely and ensure workers, customers and the general public are protected.

By following the proper health and safety guidelines, these businesses will be permitted to begin operations on Monday, May 4 at 12:01 a.m.:

  • Garden centres and nurseries with curbside pick-up and delivery only;
  • Lawn care and landscaping;
  • Additional essential construction projects that include:
    • shipping and logistics;
    • broadband, telecommunications, and digital infrastructure;
    • any other project that supports the improved delivery of goods and services;
    • municipal projects;
    • colleges and universities;
    • child care centres;
    • schools; and
    • site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
  • Automatic and self-serve car washes;
  • Auto dealerships, open by appointment only;
  • Golf courses may prepare their courses for the upcoming season, but not open to the public; and
  • Marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

Although certain businesses are being permitted to reopen, it is critical that people continue to stay home, practise physical distancing and only go out for essential reasons, to pick up groceries, prescriptions or to keep a medical appointment.

On April 27, the government released A Framework for Reopening our Province, which outlines the criteria Ontario's Chief Medical Officer of Health and health experts are using to advise the government on the loosening of emergency measures, as well as guiding principles for the safe, gradual reopening of businesses, services and public spaces.

For more information from us about the new Health and Safety Association Guidance Documents for Workplaces During the COVID-19 Outbreak, go here:

http://wardlegal.ca/31587872329974

and here:

https://news.ontario.ca/opo/en/2020/04/health-and-safety-association-guidance-documents-for-workplaces-during-the-covid-19-outbreak.html?_ga=2.41393255.457691440.1588173943-912132074.1553015509

read more