Canada’s seven-day average for new daily cases is now close to 1,300 — an increase of nearly 60% over the previous week, with cases ticking back up mainly in Ontario, B.C., Alberta, Saskatchewan, and Quebec due to the delta variant; this is the fourth wave of COVID-19. While not out of the woods, unlike previous waves, there is hope this wave won’t be quite so dire given that research continues to show: (a) vaccines offer high levels of protection from serious illness, even against the fast-spreading delta variant; and (b) the delta variant is surging through populations with low vaccination rates (i.e., on August 11, 2021 Ontario reported that of the 324 new cases roughly 72% involved persons who are unvaccinated).
Under the Supporting Ontario’s Recovery Act Ontario workers, employers, volunteers, non-profits and other organizations who make an “honest effort” to follow public health advice, public health guidance and the applicable laws are protected from liability, including vicarious liability which is important to employers, in the event of transmission to third parties. As such, staying abreast of current developments is key for employers wishing to take advantage of such protection from liability as they are attempting to return to operating their businesses.
Yesterday, in response to the delta variant that is driving the fourth wave of COVID-19, the Ontario government has released new guidelines around testing and self-isolation for those who might be exposed to the virus — with the rules dependent on vaccination status. Particularly, the Haves (with the full vaccine – that is 2 doses) will be subject to fewer restrictions and more lenient isolation requirements compared to the Have Nots.
What are the New Rules?
The Haves who are asymptomatic and exposed to a confirmed case are “likely” (depending on their specific public health unit) not required to self-isolate, but should get tested; they should self-monitor for any symptoms for 10 days, as well as follow public health measures like wearing masks outside their home. A Have Not must self-isolate for 10 days and immediately get tested.
If a Have is exposed to a confirmed case and does develop symptoms, they are instructed to self-isolate and get tested right away. If that test comes back positive, they must self-isolate for 10 days. If the test is negative, they can stop self-isolating once those symptoms have improved for at least a day, or two days for gastrointestinal symptoms. The Haves in this category who are members of the same household don’t need to self-isolate if they’ve been vaccinated however the Have Nots in this category would need to self-isolate until the exposed person gets a negative test result.
If a Have Not comes into contact with a confirmed case, the rules are different. The Have Nots must self-isolate for 10 days and immediately get tested. If the test is negative, a second test is recommended on or after day seven of that self-isolation period. Moreover, a Have Not in this category must self-isolate for this period following their last exposure, even if they test negative.
If a Have Note who has been exposed has no symptoms, fully-immunized household members don’t need to self- isolate – however, if they aren’t vaccinated, the household member should stay home except for “essential reasons” like work or school during the exposed person’s isolation period (a concern for many employers).
Where a Have Not is exposed and does have symptoms, they must be improving for at least a day or 2 where gastrointestinal symptoms before isolation can end. Have household members in this situation don’t have to self-isolate, but Have Nots who don’t have their shots should self-isolate while the exposed person is awaiting test results, then stay home except for essential reasons during the exposed person’s isolation period. To assist with understanding these rules the province has laid these guidelines for what people should do if they are exposed to someone who has tested positive for COVID-19 in a flowchart broken down by vaccinated and unvaccinated: Appendix 11 High Risk Contact Flow Chart (documentcloud.org). It is recommended that you post, email or otherwise distribute this chart to your employees, be available to answer questions on its application, and provide training on it. Communication and training are key to reducing the spread and reducing potential liability.
What does this mean to your workplace?
Again, this is an honour system that makes workplace policies concerning these rules as well as training and communication on such policies critical. Why is this?
During a public health crisis, privacy laws still apply however they are not a barrier to appropriate information sharing. In Ontario we do not have specific provincial privacy legislation concerning the collection, use, and disclosure of employee personal information generally; we do have Ontario’s Personal Health Information Privacy for the Health Sector. This lack of privacy legislation generally does not mean that employers do not need to be concerned with protecting employee privacy or face potential liability (not covered the Supporting Ontario’s Recovery Act).
As such, employers must be mindful that a COVID-19 diagnosis is private health information as is vaccination status – so far given that there is no vaccination passport in Ontario, and an individual employee’s privacy must be maintained whenever possible.
At the same time, under OHSA employers have an obligation to take reasonable steps to provide a safe workplace for their employees. Layered on top of this is tracking obligations where there has been an exposure or potential exposure.
Therefore, assessing the appropriate use and disclosure of such employee personal health information must involve the balancing of individual employee privacy rights with the employer’s obligation to protect its workplace. Best practices are to get consent where possible and to have clear, communicated policies in place. Both the policies and the reasons for them should be clearly communicated to employees so they understand not only the importance of the policy and why it is in place, but also their obligations under it. Employees should also be trained on and remind of their obligations under such policies. Further, like any workplace policies, these policies need to be consistently and fairly applied, with clear consequences for breach. The lawyers in our Employment and Labour Group are here to assist you with such policies and these new rules.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.