On February 8, 2021, the Government of Ontario announced the upcoming end to its state of emergency, as regions will begin reopening according to Ontario’s colour-coded COVID-19 restriction framework. The Government of Ontario also announced amendments to this framework.

Between February 10, 2021, and February 22, 2021, public health units across Ontario will be placed into colour-coded zones depending on regional COVID-19 case counts. The Ontario government has also amended its most strict zone to help retail businesses reopen. Until each public health region is placed back into the colour-coded framework, it will remain in what is now called the “Shutdown Zone.” No changes have been made to this level.

Current Plan for Reopening by Public Health Unit

Effective February 10, 2021, the stay-at-home order will be lifted in some regions. The following regions will move into the Green-Prevent Zone, which is the category in which the fewest restrictions apply:

  • Hastings Prince Edward Public Health
  • Kingston, Frontenac, and Lennox and Addington Public Health
  • Renfrew County and District Health Unit

Effective February 16, 2021, the stay-at-home order will be lifted in 28 other regions, with the exception of Toronto, Peel, and York. Regions slated to reopen on February 16, 2021, will enter the colour-coded zone at a level that reflects the regional COVID-19 case count at that time.

For Toronto, Peel, and York regions, in which COVID-19 infection rates are the highest, the stay-at-home order will be lifted on February 22, 2021, and these regions will also enter the colour-coded zone that reflects the regional COVID-19 case count at that time.

Changes to the Colour-Coded Zones

In addition to announcing plans for the end of the province-wide state of emergency and stay-at-home order, the Ontario government has made several amendments to the rules governing how businesses are permitted to operate upon reopening.

All open businesses must develop a written COVID-19 safety plan, with some businesses (including retail) required to post it in a conspicuous location in the workplace and others required only to have it available upon request. Businesses must also ensure that individuals “maintain at least two metres of physical distance and wear … face covering[s].”

The Government of Ontario has also indicated that it will require businesses to ensure that their screening protocols are “in compliance with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health or other public health official.” This advice is not currently outlined in full detail and may be subject to future changes, but it currently includes the following:

  • “[p]osting signs at all entrances to the premises, in a location visible to the public, that informs individuals on how to screen themselves for COVID-19 prior to entering the premises”;
  • “screening every person who works at the business or organization before they enter the premises”; and
  • “screening patrons entering indoor malls” in the Red-Control and Orange-Restrict Zones.

It is not entirely clear which businesses must engage in active screening versus passive screening, but all businesses are required to engage in screenings. Retailers must also implement passive screening for patrons attempting to enter a store, such as self-screening signage.

Changes to Retail Restrictions and Work-From-Home Requirements in the Grey Zone

The Ontario government also announced changes permitting in-person shopping at retailers, as long as capacity is limited to 25 percent.

Retailers, such as “supermarkets and other stores that primarily sell groceries, convenience stores, and pharmacies” are now subject to a 50 percent capacity limit.

If retailers open under the new Grey Zone restrictions, they must:

  • publicly post the capacity limit;
  • implement passive screening for patrons (except indoor malls, where active screening is required);
  • ensure physical distancing of at least two metres is maintained and that patrons wear face coverings;
  • if the store is within a shopping mall, ensure there is no loitering; and
  • create a COVID-19 safety plan and post it in a conspicuous location in the workplace.

Further, the amended Grey Zone does not explicitly require that employees work remotely, but it still requires that businesses follow the advice of the Chief Medical Officer of Health (CMOH) respecting remote work. Employers may want to continue to monitor the advice of the CMOH to ensure that they comply with remote working requirements.

Businesses in the Shutdown Zone continue to be under mandatory work-from-home measures and are required to ensure that employees work remotely unless the nature of their work necessitates on-site workplace attendance.

Additional Changes for Retailers in Red-Control Zones

In addition to the general restrictions outlined above, the Red-Control Zone has a few additional restrictions that affect in-person shopping capacity. If a public health unit is placed in the Red-Control Zone, retailers must ensure capacity does not exceed:

  • 50 percent for nonessential retail, including “discount and big box retailers, liquor stores, hardware stores, and garden centres”; and
  • 75 percent for “supermarkets and other stores that primarily sell groceries, convenience stores, and pharmacies.”

“Emergency Brake” System

On top of these framework changes, the government has also introduced an “emergency brake” system. This brake empowers “the Chief Medical Officer of Health, in consultation with the local medical officer of health, [to] advise immediately moving a region back into Grey-Lockdown” if “rapid acceleration in COVID-19 transmission” occurs or Ontario’s “health care system risks being overwhelmed.” This emergency brake system will provide “an extra layer of protection” and aim to contain any outbreaks before they spread province-wide. It remains to be clarified whether this brake system will send units into the Shutdown Zone or Grey Zone restrictions now distinguished in the amended O. Reg. 82/20: Rules for Areas in Stage 1. It is unclear as of publication what the legal mechanism will be for implementing this emergency break.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

Please note that this article was published before the relevant amendments to the regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and other relevant laws were enacted, and is based on the available guidance as of February 10, 2021.

Michael C. Comartin is a partner in the Toronto office of Ogletree Deakins.

Christina S. Persad is an associate in the Toronto office of Ogletree Deakins.

Caroline M. DeBruin is a 2020 graduate of Queen’s University, Faculty of Law, and an articling student in the Toronto office of Ogletree Deakins.