Construction employers are being faced with new challenges during COVID-19. The law appears to be changing on an ongoing basis and employers need to be on top of those changes.
Employers should note the following changes:
- The Government of Ontario has released the list of essential workplaces, which includes construction services and work. This declaration means that these businesses may continue to operate at this time.
- The Employment Standards Act, 2002 has been amended to provide for an unpaid leave of absence for employees who are unable to work for enumerated reasons, including: (i) employees who are in isolation or quarantine due to COVID-19; (ii) employees who provide care or assistance to a “specified individual” (e.g., spouse, child and parent); and (iii) where the employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace. This leave is retroactive to January 25, 2020 under the regulations and will remain in place until “COVID-19 is defeated” according to the Government of Ontario’s website.
- Employers are required to report all occupational illnesses, including COVID-19, to the Ministry of Labour, Training and Skills Development in writing within four days. Employers are also required to notify their joint health and safety committee or a health and safety representative and a trade union, if they exist.
Employers are reminded to be vigilant about their duties under the Occupational Health and Safety Act (“OHSA”). Of particular importance during COVID-19 is the employer’s duty to “provide, information, instruction and supervision to a worker to protect the health or safety of the worker”. This duty may entail providing information on the measures and procedures that have been implemented on construction sites to address COVID-19. Employers may experience a rise in workers refusing to work. While the OHSA does permit a worker to refuse to work where he or she has a reason to believe that the physical condition of the workplace is likely to endanger himself or herself, the specific circumstances of each case must be considered in order to determine whether the refusal to work is legitimate.