On March 27, 2020, Alberta's Chief Medical Officer of Health ("CMOH") issued an Order containing a number of measures aimed at curbing the spread of COVID-19. Among other things, the Order forbids the provision of services at publicly accessible locations by certain types of business. The Order also requires businesses that are continuing to operate to take certain steps to protect their workforces.

In this post, we look at the Order in the broader context of the Alberta approach to business closure and workplace safety during the pandemic crisis, under which the CMOH has the power to order specific classes of business to be closed to the public while leaving other businesses free to choose to remain open, provided that they can do so in full compliance with health, safety and hygiene standards established by the CMOH.

Non-essential Businesses

CMOH Order 07-2020, made under s. 29(2.1) of the Public Health Act, designates a number of businesses as "non-essential" and forbids them from offering services to the public at a location that is accessible to the public:

  • Businesses offering non-essential health services (services whose withdrawal will not immediately endanger anyone's life, health or safety);
  • Business offering personal services (such as hairdressing and other types of personal grooming);
  • Business offering wellness services (such as massage therapy or reflexology);
  • Retail stores providing only non-essential goods and services (essential services being those considered critical to health, safety and basic societal functioning).

With respect to restaurants and other food-serving facilities, the Order specifically restricts their services to take-out, drive thru and delivery services only.

Alberta's focus in this Order appears to be primarily on workplaces that are generally open to the public. The following additional points should be noted:

  • The CMOH reserves the right to grant exemptions from the non-essential businesses list.
  • While CMOH Order 07-2020 generally broadens and adds to the requirements previously set out in Order 02-2020, it does not explicitly supersede that previous order, which may continue to apply in certain circumstances.

Requirements Applying to Operating Businesses

Businesses that are not listed as "non-essential", or are not otherwise prohibited from operating under the terms of the Order, may continue to operate but must do the following, if they offer or provide services to the public at a location accessible to the public:

  • Prevent the risk of transmission of infection between their workers or to or from members of the public;
  • Provide for rapid response if anyone (worker or member of the public) develops symptoms of illness while at the place of business;
  • Maintain high levels of hygiene.

What Are "Essential Services"?

As noted above with respect to retail stores, section 9 of the Order defines "essential service" as "a service considered critical to preserving life, health, public safety and basic societal functioning". To clarify the scope of "essential service" in this context, it is useful to refer to the Government of Alberta's non-exhaustive list of essential services that may continue to operate. The list is "non-exhaustive" because, provided that the health, safety and hygiene standards referred to in the previous section are met (in addition to any other requirements applying to that type of business), any business may continue to operate unless it has been designated as "non-essential" or is otherwise ordered to close.

The Alberta essential services list encompasses several hundred workplace types under the following headings:

  • Health, medical and public health
  • Public safety and security
  • Food and shelter
  • Energy and utilities
  • Water
  • Transportation
  • Industrial
  • Petroleum, natural gas, and coal
  • Construction
  • Agricultural and horticultural
  • Retail
  • Financial services
  • Information and telecommunications
  • Public administration and government
  • Other essential services

As an example of the level of detail, the full list under "Petroleum, natural gas, and coal" is as follows:

  • Petroleum product storage, pipeline, terminals, rail transport, road transport
  • Crude oil storage facilities and pipeline transport
  • Petroleum refinery facilities
  • Petroleum security operations centre employees and workers who support emergency response services
  • Petroleum operations control rooms/centres
  • Petroleum drilling, extraction, production, servicing, processing, refining, terminal operations, transporting, and retail for use as end-use fuels or feedstocks for chemical manufacturing
  • Operations for maintenance and emergency response
  • Retail fuel centres such as gas stations and truck stops, and the distribution systems that support them
  • Natural gas transmission and distribution pipelines, including compressor stations
  • Underground storage of natural gas
  • Natural gas processing plants, and those that deal with natural gas liquids
  • Liquefied Natural Gas (LNG) facilities
  • Natural gas security operations centre, natural gas operations dispatch and control rooms/centres natural gas emergency response and customer emergencies, including natural gas leak calls
  • Drilling, production, processing, servicing, and transporting natural gas for use as end-use fuels, feedstocks for chemical manufacturing, or use in electricity generation
  • Propane gas dispatch and control rooms and emergency response and customer emergencies, including propane leak calls
  • Propane gas service maintenance and restoration, including call centres
  • Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
  • Propane gas storage, transmission, and distribution centres
  • Workers necessary for the manufacturing of necessary materials and products for energy.

Because each of the general business categories contains a similarly detailed list, it is important to consult the website for additional information.

Conclusion

Alberta's approach is broadly similar to that of British Columbia in that businesses are presumed to be able to continue to operate, subject to strict health and safety protocols, unless they fall into a category that is expressly required to close. In contrast, the approach in Ontario and Quebec has been to create an exhaustive list of "essential" businesses that may remain open while generally requiring that all other businesses close.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.