Orders under Section 22 of the Health Protection and Promotion Act, RSO 1990, c H.7 (“HPPA”) have started sweeping across the Greater Toronto Area and elsewhere in Ontario, obliging compliance with stringent measures to contain the spread of COVID -19. Section 22 of the HPPA allows Medical Officers of Health (MOH) to order businesses to take or to refrain from taking any action specified in the order under threat of daily fines of up to $25,000 per day. Employers are well-advised to take a leadership role in setting and maintaining COVID-19 Health and Safety standards.
Clearly COVID-19 transmission rates have exceeded the first wave of the pandemic, and Public Health officials are reaching for the tools at hand to force employers to comply with changing regulations. Employers must comply with the changes in Health and Safety protocols to manage risk or face potentially crippling fines.
Regional authority to use Section 22
In Peel, where there have been 116 workplace outbreaks since September, The Medical Officer of Health, Dr. Lawrence Loh, has made clear he will use Section 22 to levy fines against any offending business.
Effective November 16th, if an employee in Peel Region has been diagnosed with or exposed to COVID-19, additional requirements include:
- Preventing employees from entering the workplace, instructing them to remain in isolation unless they need urgent medical attention;
- Implementing all COVID-19 prevention measures outlined in provincial regulations and guidance, such as screening, distancing, masks, hand hygiene, and infection prevention and control; and
- Immediately notifying Peel Public Health and the Ministry of Labour, Skills and Development if there are two or more COVID-19 employees.
While authorities across regions are asking employers to offer paid sick leave, there is no legal obligation yet to do so. Though highly publicized in Peel, Section 22 orders have been brought into force by Municipalities across Ontario. Medical Officers of Health issuing Section 22 orders include:
Toronto (November 13)
Niagara Region (November 14)
Middlesex-London Health Unit (October 24)
Wellington-Dufferin-Guelph Public Health (September 15)
What does this mean for employers?
A violation of the order is an offence under the HPPA. Where a corporation is convicted under the HPPA, their directors and responsible officers and employees could also be guilty of an offence. The penalty is up to $5,000 fine per day for an individual and $25,000 per day for a corporation. In order to avoid fines, once charged, an employer will need to satisfy the court that he or she took all reasonable care to prevent the commission of the offence.
In Toronto, fines have been levied in many cases – the most high-profile violations being businesses in the Entertainment District. Goldie’s, a King West Bar, was alleged to have hosted an illegal indoor party with over 100 guests. While over 90% of establishments have complied, charges continue to be laid. Over the weekend of November 14 and 15, five charges and four warnings were issued in the Entertainment District alone. Two well-known King West destinations were even closed on the order of Public Health for violations.
The HPPA contains some powerful legal tools for government health officials to combat COVID-19, and these tools can be quite intrusive.
If condition precedent is met, subsection 22(1) of the HPPA authorizes an MOH to issue a written order against an employer. An employer may be required to shut down; have an employee isolate themself; destroy materials; have an employee submit to an examination by a physician; have an employee seek medical care; limit exposure through certain actions; etc. It is worth noting that subsection 22(5.1) renders the Health Care Consent Act, 1996 not applicable under circumstances that a MOH may order a person to undergo examinations and treatments without the person’s consent communicable disease is concerned.
Failure to comply with written orders from the MOH could result in an employer or individual having to cover additional costs if someone else has to carry out the order for them. It could also lead to the responsible individual being taken into custody and admitted to and detained in a hospital or other appropriate facility for examination or treatment.
Every person who is subject to a Section 22 Order may request a hearing before the Health Services and Appeal Board within 15 days of notice of the order to challenge the order. Further appeal to the court may also be available.
While appeals are possible, the best option is to redesign your health and safety protocols around the evolving COVID-19 standards. Work with an employment lawyer whose role it is to understand each protocol as it is introduced and can assist you in staying current with changes. At Hum Law, our role is to provide clear guidance to companies and their Human Resources teams as regulations change across municipalities and regions.
The Hum Law Firm will continue to monitor legal developments in relation to COVID-19 liability protection. We encourage you contact us immediately for legal assistance.
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