On April 8, 2021, the Ontario government declared a third state of emergency in response to increasing transmission rates of COVID-19 and its variants. The order imposed a four-week stay-at-home order but did not impact construction activities which, by that time, had been permitted to continue provided they were undertaken in compliance with the Ontario Health and Safety Act (“OHSA”) and any applicable municipal by-laws and local health unit orders.
On April 17, 2021, the stay-at-home order was extended for an additional 2 weeks to May 20, 2021, and new enhanced restrictions were announced, which included limits imposed on the types of construction activities that may continue. Under the new order, all “non-essential” construction across the province has halted and only those construction activities that the government has deemed to be “essential” are permitted to continue.
The stay-at-home order requires workers to work remotely except where the nature of their work requires them to be on-site. Business deemed to be “essential” may remain open, including those involved primarily in the sale and production of food, however, capacity limits may apply. Other businesses, such as those in telecommunications and information technology (IT), transportation, and supply chain services such as distribution and delivery are also permitted to continue operations. The practical effect of the new restrictions will be to impose similar restrictions to those that had been in place under the second stay-at-home order on January 14, 2021, and which had remained in place in Toronto and Peel until March 8, 2021.
Permissible Construction Activities under the Current Emergency Order
Except as provided in O. Reg. 82/20, all construction projects are ordered closed, except those that are deemed “essential”. Essential construction activities and related services, including land surveying and demolition services, are permitted to continue and are summarized as follows:
- The health care sector and long-term care facilities
- Municipal infrastructure or provincial infrastructure, including transit, transportation, resources, and the energy and justice sectors
- Electricity and natural gas
- Schools, colleges, universities, and childcare facilities
- Necessary work and modifications to petrochemical plants and refineries, including maintenance and operations
- Additional capacity for production and distribution of food, beverages, and agricultural products
- Broadband internet and cellular technologies
- Residential construction activities, projects, and related services
- Shelter or support for vulnerable persons or affordable housing
- Preparation of a site for institutional, commercial, industrial or residential development, including necessary excavation, grading, roads or utilities
- The temporary closure of construction sites
- Federal, provincial, or municipal projects or those related to charities, not-for-profit corporations, or managers under the Housing Services Act
Projects that commenced before April 17, 2021, are allowed to continue in the following situations:
- Significant industrial petrochemical projects
- Additional capacity for businesses providing logistical support, distribution services, warehousing, storage or shipping and delivery
- Additional capacity for IT or telecommunications services
- Manufacturing, processing and distribution of goods and equipment, specifically to provide additional capacity or enhance the efficiency of operations
Further information regarding the third state of emergency is available from the Province of Ontario on its website at Enhancing Public Health and Workplace Safety Measures In The Provincewide Shutdown.
Health and Safety Requirements for Permissible Construction Activities
Construction activities that are permitted must be undertaken in accordance with the COVID-19 precautions under the Ontario Health and Safety Act and its regulations (“OHSA”) and the directives from the Chief Medical Officer of Health. To ensure compliance, an inspection blitz was launched on April 16, 2021, whereby 200 inspections from the Ministry of Labour, Training and Skills Development will be sent to 1,300 construction sites accompanied by provincial officers to ensure compliance with health and safety protocols. Violations may result in fines of up to $750 for individuals and $1,000 for businesses. A campaign of rapid antigen testing has also been introduced.
Under the OHSA, certain responsibilities are imposed on constructors and employers to ensure worksite safety. Further requirements apply under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, the municipal by-laws applicable to projects, and local public health unit orders.
For construction projects, this requires coordination among the different parties in the construction pyramid, including owners, contractors, and subcontractors, to determine how the precautionary measures will be implemented. The COVID-19-specific precautions include:
- Implementing and updating a written safety plan, which includes how confirmed cases of COVID-19 will be dealt with and contact tracing;
- Imposing COVID-19 screening for employees entering the worksite;
- Imposing control masking and PPE (masking and eye protection) requirements for particular site locations and job tasks;
- Ensuring proper ventilation in closed and partially-closed areas, including airflow and limits on the time that workers spend inside;
- Maintaining workplace sanitation and hygiene, including providing an adequate number of cleaning stations and washrooms, sanitizing surfaces, and avoiding tool sharing;
- Reducing the number or workers on site and maintaining social distancing in work areas; and
- Planning worksite mobility and transportation and providing for one-way access corridors and staircases.
Further information regarding the duties imposed on employers under OHSA is available from the Province of Ontario on its website at Construction site health and safety during COVID-19.
The Construction Litigation group at Pallett Valo LLP continues to monitor the response of the Government of Ontario to the COVID-19 pandemic and its impact on the construction industry.