Canada: Manitoba's Plan To Restore Safe Services: What Does The "New Normal" Look Like For Your Business?

Following on the heels of similar announcements from other provincial governments, on April 29, 2020 Manitoba announced its plan to gradually reduce some of the public health measures currently in place with a view to restoring certain services and safely restarting the economy.

The two-phase plan, entitled "Restoring Safe Services: Manitoba's Pandemic and Economic Roadmap for Recovery", permits certain "non-essential businesses" to reopen starting today, May 4, 2020, and contemplates additional restrictions being eased, or in some cases lifted, after June 1, 2020.

The details of Manitoba's plan to reopen are summarized here.

It is critical for Manitoba businesses planning to reopen in the coming days and weeks to implement measures to protect staff and customers from the transmission of COVID-19 in order to meet the evolving standard of care. The failure of a business to meet the applicable standard of care could expose that business to liability for negligence. So, what specific measures should Manitoba businesses opening under the government's new plan implement in order to minimize their risk of future litigation? Of course, the answer will vary depending on the type of business.

Therapeutic and Health Care Businesses

Starting May 4, 2020, health-care professionals may return to providing services to the public subject to certain restrictions, including any which may be imposed by the health care professional's regulatory body. Health-care professionals are advised to stay informed of and follow the requirements of their regulatory body before reopening to the public. In addition to any requirements or recommendations from their regulatory body, a health-care professional would be advised to consider implementing the following measures, some of which are mandatory under Manitoba's plan to reopen:

• Staff, patients and people attending with patients must use the COVID-19 self-screening tool available through Shared Health. It is important for businesses to consider how they will confirm with individuals that they have used the screening tool, and how the business will document that confirmation in the event they need to prove compliance. Businesses may wish to consider having individuals sign a declaration to the effect that: 1) they have used the self-screening tool within the last 24 hours and 2) the tool confirmed that the individual did not need to be tested for COVID-19.
• Screening patients and people attending with patients by telephone for symptoms of COVID-19 before an appointment is booked. Again, it is important that businesses keep a record of their screening procedures in case they are required to demonstrate compliance.
• Maintaining a single point of entry and posting external and internal signs indicating physical distancing protocols, along with floor markings where service is provided or lines form.
• Implementing waiting room strategies, including requiring patients to wait in their car, if possible.
• Requiring patients to sanitize their hands upon entry to the facility, sanitizing work/service areas before/after each patient visit and requiring patients to wear masks when receiving services, if possible.
• Businesses that provide therapeutic massage or acupuncture services are required to limit the number of members of the public at the business to 50% of the usual occupancy of the premises or one person per 10 square metres that are open to the public, whichever is lower.

Retail Businesses

A number of retail businesses previously deemed "non-essential" and required to close under previous public health orders will be permitted to reopen, at reduced capacity, starting May 4, 2020. Retail businesses that reopen on or after May 4, 2020 will be required to ensure separation of at least two metres between members of the public attending the business and, in addition, limit occupancy to 50% of normal business levels, or one person per 10 square metres, whichever is lower.

Retail businesses that reopen under the government's new plan would be advised to consider implementing the following measures to minimize the risk of COVID-19 transmission and potential liability that may result to that business in the event of an outbreak:

• Requiring all staff to use the COVID-19 self-screening tool available through Shared Health. This is a mandatory requirement as per the government's plan to reopen. Consider how your business is going to document and preserve a record that staff have used the tool without imposing on their right to privacy. A summary of privacy considerations for businesses can be found here.
• Regulating entry to the business to avoid congestion.
• Maintaining a single point of entry and posting external and internal signs indicating physical distancing protocols, along with floor markings directing customer traffic flow, and also where service is provided or lines form.
• Implementing policies requiring staff to stay home if they present with COVID-19 symptoms.
• Making hand sanitizer available for public and staff use.
• Encouraging cashless or no-contact payment as much as possible.

Restaurants

Restaurants will remain closed except for delivery, take-out and patio or walk-up food service in which case patrons are required to maintain a distance of at least two metres, except for brief exchanges. The increased risk of exposure in the food-service setting means that restaurants reopening on or after May 4, 2020 must employ strict precautions in order to minimize that risk. The provincial government has published a series of guidelines for restaurants that intend to reopen under the new plan, many of which are mandatory, including:

• Requiring staff to use the COVID-19 self-screening tool available through Shared Health. Again, consider how your business is going to document and preserve a record that staff have used the tool without imposing on their right to privacy.
• Limiting occupancy to 50% of normal business levels.
• Regulating entry into the restaurant to avoid any congestion.
• Maintaining a single point of entry and posting external and internal signs indicating physical distancing protocols, along with floor markings directing customer traffic flow, and also where service is provided or lines form.
• Maintaining a distance of two metres between tables and/or patrons and between patrons sitting or standing at counters.
• Removing all table items (e.g. condiments, napkin dispensers, etc.) unless they can be cleaned between customers.
• Cleaning tables, chairs and other surfaces between customers.
• Making hand sanitizer available for staff and public use.
• Not offering any buffet services but delivering food and drink to patrons directly.

It is also recommended that businesses stay apprised of precautions being taken by competitors, and consider implementing similar precautions where appropriate. The standard of care expected of a business operating during the COVID-19 pandemic is determined objectively and generally by what a "reasonable" business would do in the same circumstances. A more in-depth review of the effects of COVID-19 on the law relating to standard of care can be found here.

While businesses do not regularly anticipate having to defend a legal action at some point in the future, it is important for a business to keep accurate and up-to-date records of all the precautionary measures that the business has implemented in response to COVID-19 as part of its plan to reopen. Records of the specific steps a business has taken to reduce the transmission of COVID-19, and documentation confirming that the steps have been implemented and consistently followed (e.g. checklists, signatures, etc.) would be valuable evidence if that business is ever called upon to defend its decision to reopen.

All businesses should take this opportunity to review their liability insurance to ensure that sufficient coverage is in place and that the policy does not contain any exclusions which might operate to void coverage if the business operates during a pandemic.