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Is Your Business Essential?

Public Order 67

As the pandemic of COVID-19 continues to evolve within our community The Government of Manitoba has responded by making recommendations, and public orders that have the potential to greatly effect the day-to-day operation of all businesses. On March 20, 2020 Manitoba’s government declared a State of Emergency, and on March 30, 2020 the Government of Manitoba, significantly, ordered the temporary closure of all non-essential business commencing on April 1, 2020 at 12:01 a.m. It is critical that business owners take the time to understand the impact of the Public Order 67, and specifically whether their business is deemed essential.

Essential Business

The schedule begins at page at page 4 of the order and lists 74 essential business that are broken down into 19 categories. The categories are as follows:

  1. Supply Chains – any business that supplies any of the essential businesses with goods or services necessary for the essential business to operate
  2. Retail and Wholesale
  3. Accommodations
  4. Institutional, residential, commercial and industrial maintenance
  5. Telecommunications and information technology
  6. Communications industries
  7. Transportation
  8. Manufacturing and production
  9. Agriculture and food production
  10. Construction
  11. Finance
  12. Natural resources
  13. Environmental services
  14. Utilities and public works
  15. Research
  16. Health care, seniors care and social services
  17. Justice sector
  18. Professional services
  19. Other businesses

While there are restrictions limiting gatherings of more than 10 people at indoor and outdoor premises, these restrictions would not apply to Essential Businesses, provided those business are continuing to implement physical distancing measures and maintaining high levels of workplace hygiene.

Best practice would be to post notices at all entranceways clearly identifying your business as being an essential service, while also detailing the measures that you are currently implementing at your business in order to maintain safe hygiene and to reduce the spread of the virus to both visitors and staff.

There may be penalties if a business is in violation of the order. If you are uncertain or need help determining if your business falls into one of 74 categories contact PKF Lawyers for an expedient response or call 1-888-234-2232 for government support.

Not Deemed Essential?

If you are now certain that your business is not one of the 74 essential businesses you must arrange for your place of business to be closed from 12:01 a.m. April 1, 2020 to April 14, 2020 at 12:01 a.m. You may however still be able to operate your business, and not be in violation of the order. The order does not prohibit non-essential businesses form:

  1. operating remotely;
  2. b. attending the place business on a short-term basis to attend to critical matters relating to the closure of the place of business that cannot be dealt with remotely; or
  3. c. attending the place of business to access goods, materials or supplies necessary for the remote operation of the business.

Businesses will want to ensure that if they are operating “remotely” that they are in fact operating remotely, not merely relocating their business. Violators who abuse the remote operation may be subject to fines and penalties.

As of April 1, 2020, Manitoba’s Chief Provincial Public Health Officer clarified the Order mandating the closure of non-essential businesses. COVID-19 Bulletin #38 states that all businesses that are not exempt from closure may:

  1. continue to operate where customers can order goods online or by telephone; however, customers cannot attend the businesses’ premises or property to order goods;
  2. continue to sell goods to customers where those goods can be picked up ‘curbside’ or delivered to customers; however, customers cannot pick up goods at businesses’ premises or on its property;
  3. allow staff to attend the businesses’ premises, without a limitation on the number of staff, as long as staff take measures to keep social distancing of one to two metres apart from each other; and
  4. accept delivery of goods and may allow services, such as construction, repairs, maintenance and cleaning to occur at their premises and on their property.

The complete bulletin may be found here: https://news.gov.mb.ca/news/index.html?item=47346

As the owner or operator of a business, you must continue to monitor the situation closely. New orders may be made pursuant to The Public Health Act and the manner in which provincial authorities interpret such order is subject to change rapidly, as new developments occur.

Implications on your Business

Orders made pursuant to The Public Health Act are made to protect all Manitobans and there may be serious consequences for failing to comply. Business owners should be aware that individuals who fail to comply with the current order may face fines of up to $50,000.00 and imprisonment for up to one year. Corporations that fail to comply may face fines of up to $500,000.00. Directors or officers of a corporation who authorize or permit their corporations to contravene the order are personally liable to penalties as individuals.

In addition to the legal and financial ramifications of failing to comply with an Order pursuant to The Public Health Act, business owners should consider the public perception of any course of action at this time. A perceived breach of legal or ethical obligations may create a public backlash across various media and cause lasting damage to the reputation of business.

If you have been ordered to close your place of business, you have chosen to close, or you are continuing to operate but on a limited basis, business owners must assess a variety of factors immediately. The necessity for their work force, financial obligations, contractual obligations and possible force majeure or frustration of a contract, to name a few.

Here are some helpful things to keep in mind:

  1. Employees – the Federal Government has an enhanced EI program in place to respond to COVID – 19, and support for independent contractors, as well as business owners and
  2. Contractual Obligations – the starting point may be negotiating a fair and reasonable response or dealing with force majeure or frustration.

We are all in this together, and if you have any questions or concerns, please do not hesitate to contact PKF Lawyers as we are here to help you and your business triumph through this difficult time.