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On March 9, 2020 we presented an urgent “Morning Recess” webinar summarizing for our school board clients their legal rights and responsibilities in the face of the global spread of the COVID-19 virus. Please contact us if you would like a copy of that presentation. In this article, we outline some of the key statutory requirements that we recommend school boards consider when developing their response to the challenges posed by COVID-19.
Emergency Preparedness
The Emergency Management and Civil Protection Act (“EMCPA”) requires school boards to have an emergency management plan and to review that plan each year.[1] School boards are also required to make their emergency plan available to the public[2] and to provide employee training and emergency preparedness exercises.[3]
School boards are posting up-to-date information about labour negotiations on their websites. We recommend that school boards add “COVID-19 ” updates that include the school board’s emergency management plan, a contact person and measures being taken at local schools.
Role of the Health Unit
The Health Protection and Promotion Act provides that the Medical Officer of Health may issue an order that:
- a person with a communicable disease must refrain from taking specified actions;
- premises must be closed;
- premises must be cleaned and/or disinfected;
- infected person(s) must remain isolated;
- articles must be destroyed;
- a person must be tested, and/or examined by a physician; and
- a person must be quarantined.[4]
We recommend identifying for school communities the responsibilities of the local Medical Officer of Health and stating that the school board is working closely with their Medical Officer(s) of Health to obtain up-to-date information and with respect to any orders that may trigger a board’s obligation to comply.
Duty to Report
Under the Education Act, a school principal has a duty to report to the school board and to the Medical Officer of Health “when the principal has reason to suspect the existence of any communicable disease in the school, and of the unsanitary condition of any part of the school building or the school grounds.”[5]
Declaration of Emergency
The EMCPA and the Employment Standards Act define an “emergency” as:
“… a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and caused by… forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise.”[6] [Emphasis added]
Applying this standard, an emergency in Ontario may be declared by the Lieutenant Governor of Ontario in Council (i.e. Premier and Cabinet), and in a municipality by the head of that jurisdiction. The Director of Education also has the authority under the EMCPA to declare that an emergency exists, at the school board.
The Education Act also imposes a duty on a principal to refuse to admit to school:
“any person who the principal believes is infected with or exposed to communicable diseases requiring an order under section 22 of the Health Protection and Promotion Act until furnished with a certificate of a medical officer of health or of a legally qualified medical practitioner approved by the medical officer of health that all danger from exposure to contact with such person has passed.”[7]
Notwithstanding a principal’s general responsibility for school safety, this section of the Education Act and the EMCPA[8] include statutory deference to the role of the Medical Officer of Health to issue directives regarding school and board responses to any local outbreak or risk of outbreak.[9]
Workplace Safety
A school board has an obligation under the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.”[10] This may include:
- encouraging employees not to come to work if they are showing symptoms or have been in the presence of a person who is symptomatic;
- sending sick employees home;
- teaching, promoting and enforcing good hygiene practices amongst staff and students;
- ensuring as clean a workplace as possible;
- distributing, and instructing on the proper use of, personal protective equipment as appropriate;
- keeping employees, parents and students informed; and
- restricting large gatherings and work-related travel.
Privacy
The Education Act provides that a school principal must, upon request from the Medial Officer of Health, provide the name, address, telephone number and birthdate of a pupil in the school, as well as the name, address and telephone number of the pupil’s parent or guardian.[11]
School boards are subject to the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”), and health care practitioners employed by school boards are subject to the Personal Health Information Protection Act (“PHIPA”). We note that neither statute prohibits the disclosure of anonymized information.
We urge caution in any disclosure of personal information without the consent of the individual to whom the information relates. However, both privacy statutes allow for disclosure where there is a significant public health concern. MFIPPA provides:
5 (1) Despite any other provision of this Act, a head shall, as soon as practicable, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard to the public. [Emphasis added]
PHIPA similarly states that a health information custodian may disclose personal health information where they believe:
“… on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons.”[12] [Emphasis added]
We would interpret this provision as supporting the duty to report to the Medical Officer of Health, rather than providing personal health information to the school community at large.
Discrimination
Lastly, we note that the Human Rights Code imposes ongoing obligations on school boards, as an employer and as a provider of educational services, to act in a manner that does not discriminate on the basis of any of the grounds protected under the Code, including race, place of origin, ethnic origin, citizenship, marital status, family status or disability.[13]
Please do not hesitate to contact us with any specific concerns that we have not addressed in this overview.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.
[1] S.3
[2] S.10
[3] S.6(2)
[4] See HPPA Part IV “Communicable Diseases”
[5] S.265(1)(k)
[6] S.1
[7] S.265(1)(l). Note also the “exclusion provision” at S.265(1)(m) which states that a principal has a duty to exclude a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils
[8] S.7.2
[10] S.25(2)(h)
[11] S.265(2.1)
[12] S.40
[13] S.1
