This article was revised to include the most recent provincial travel updates as of May 28th, 2020. While the term “unprecedented” is being used frequently in the context of the COVID-19 pandemic and the measures that have been taken in response to it, one context where the word can legitimately be applied is the restrictions […]read more
Newfoundland and Labrador’s COVID-19 Response – Information for Businesses
This article was revised to include updates as of May 22, 2020
On March 18, 2020, the Minister of Health and Community Services for Newfoundland and Labrador declared a Public Health Emergency under the Public Health Protection and Promotion Act. This declaration continues in effect; along with the accompanying Orders under the Act, and has had a profound effect upon the daily lives of everyone in the province, as well as on businesses and other organizations.1
In this article we answer some frequently asked questions by businesses about the Public Health Emergency, including how restrictions apply to businesses in Newfoundland and Labrador, and how these rules will be changing with the announcement on 30 April of the Government’s “NL Life with Covid-19” program for relaxing restrictions.
Background – Public Health Emergency
While a Public Health Emergency under the Public Health Protection and Promotion Act is in effect, the Chief Medical Officer of Health has significant powers “for the purpose of protecting the health of the population and preventing, remedying or mitigating the effects of the public health emergency”.2 This includes the power to make various orders that have legal effect once issued.
In addition to these orders, the House of Assembly on 26 March also passed the Covid-19 Pandemic Response Act.3 This was omnibus legislation which did the following:
- Amended the Labour Standards Act to create a right to a leave of absence from employment without pay for a list of reasons relating to the pandemic, including being required to self-isolate or quarantine in compliance with an order of the Chief Medical Officer of Health, or to provide care to family members for reasons relating to the pandemic
- Extended the period under the Residential Tenancies Act for eviction on nonpayment of rent to 30 days (from 3 or 5 days)
- Created a new Temporary Variation of Statutory Deadlines Act, this provided the Government with the flexibility to issue orders to extend deadlines in legislation.4
Since 26 March, the Government has issued a number of orders under the Temporary Variation of Statutory Deadlines Act, to postpone activities which were required to be completed currently or in the near future (such as legislative reviews) as well as to extend timeframes such as an extension of many time periods for legal actions under the Limitations Act.5
The Government has also issued orders under other pieces of legislation which relate to the Covid-19 pandemic. For example, on 22 April the Government announced a ban on open fires on forest land, or within 300 metres of forest land for all regions of the province. The ban includes grass burning, brush burning, campfires and personal fireworks. Gas barbeques and CSA approved patio wood burning devices are excluded from the ban, but people also have to comply with any municipal ban that may locally be in place for these devices.6
On 5 May the House of Assembly passed further pandemic-related legislation:
- Amendments to the Liquor Control Act and the Liquor Corporation Act, creating the ability for licensees to deliver alcoholic beverages with meals, and for brewers, wineries and distilleries to deliver products, to customers for consumption.
- Creation of a new Temporary Alternative Witnessing of Documents Act, which temporarily amends the Commissioner of Oaths Act, the Notaries Public Act, the Registration of Deeds Act, 2009, and the Wills Act, to permit the witnessing of the execution of documents through audio-visual technology, as opposed to being in person, subject to certain restrictions.
- Amendments to the Temporary Variation of Statutory Deadlines Act, passed on 26 March, to clarify its expiration date is 30 September 2020.
- Amendments to the Public Health Protection and Promotion Act, to clarify the powers of peace officers (including police) to locate individuals in contravention of measures ordered under the Act, take them into custody, and convey them to a location including a point of entry in the province.
Background – “NL Life with Covid-19”
On 30 April the Government announced NL Life with Covid-19, a program to ease back on restrictions that have been imposed under the Public Health Emergency. The plan is for a 5 “Alert Level” program, with restrictions being eased and relaxed as the Government moves through the Alert Levels from 5 to 1, which process will be determined by monitoring the following factors: (i) the spread of COVID-19; (ii) the ability to test, trace and isolate all cases; (iii) the health system’s readiness to handle any surge in COVID-19 cases; (iv) the risk of outbreaks; (v) workplace preparedness to protect the health and safety of staff and the public; (vi) identification and isolation of travel-related cases; and (vii) community readiness to live with COVID-19. Regular movement through the various Alert Levels is not guaranteed, and reversion to a more restrictive Alert Level may be required depending upon the assessment of the factors noted above.
The province is currently at “Alert Level 4”. A move to “Alert Level 3” will not be possible before at least 28 days of assessments as to the status under Alert Level 4 (meaning 8 June at the earliest).
Q. What businesses have been ordered to close? What is the plan for their being able to re-open?
A. The following have been ordered to be closed, and remain closed during Alert Level 4:
- Gyms and fitness facilities, including yoga studios, tennis and squash facilities; dance studios; cinemas; performance spaces; arenas; and bingo halls7;
- personal services establishments including spas, esthetic services, hair salons, body piercing, tattooing and tanning salons8 ;
- retail stores, unless those stores provide services essential to the life, health or personal safety of individuals and animals including: food; pharmaceutical products, medicine and medical devices; personal hygiene products; cleaning products; baby and child products; gas stations; computer and cellphone service and repair; electronic and office supplies hardware supplies; and pet and animal supplies.9
- businesses that hold a license under the Liquor Control Act whose primary purpose is the consumption of beer, wine, or spirits and that do not otherwise qualify as an exception under this Order.10
- restaurants, for in-person dining (but take-out, delivery and drive-thru services are permitted).11
- private health care clinics, except physician and nurse practitioner clinics, except for urgent or emergent services.12
- campsites in municipal or provincial owned parks13, except where the campsite is the permanent residence of individuals without any other residence.14
Under Alert Level 4, as of Monday 11 May, the following changes occurred:
- gardening centres can open for in-person sales and service.
- landscaping and lawn care services can operate.
- animal daycares can resume operations.
- limited expansion of child care services.
- in-person worker and workplace safety training will be permitted (e.g. Standard First Aid, Basic Safety Training, food safety, etc.).
- professional services such as accounting firms, law firms, and financial services can offer in-person services. Work from home policies are encouraged, where possible.
Retail stores that do not offer essential services, bars and lounges, cinemas, and personal service establishments remain closed; as well restaurants remain closed for in-person dining.
Q. What are the restrictions on gatherings? How does that apply to my business operations?
A. Gatherings of more than 10 people are prohibited.15 In addition, the province has released a “Guidance for Gatherings” document which stipulates that under Alert Level 4, gatherings of 10 or less people will be permitted at funerals, burials, weddings, and essential workplace activities such as certification or training16 as long as physical distancing requirements are maintained. For businesses that were not specifically ordered to be closed, the “gathering” restriction has not applied to the workplace; however, businesses are required to ensure physical distancing guidelines and cleaning protocols are complied with. It is recommended that employers permit employees to work from home where possible.
Q. Can I or my employees travel for business?
A. While non-essential travel is discouraged, it is possible to travel out of the province for business. However, any traveler will have to comply with the travel restrictions in place at the destination of travel, which could include requirements to self-isolate; you are strongly advised to fully review any such requirements before contemplating such travel. Upon a return to the province from any destination outside the province, you will be required:
- to self-isolate for 14 days.17
- to complete and submit a declaration form to a government representative at their point of entry to the province, provide specifics of the plan for complying with the requirement to self-isolate for 14 days; and be available for contact with public health officials during the duration of the 14-day self-isolation period.18
This will be in addition to being required to demonstrate residency as a condition of being admitted to the province as a result of the restrictions on non-residents announced on 4 May.
Q. What are the exemptions on the requirements to self-isolate?
A. There are various exemptions and modifications to the requirement to self-isolate for 14 days for workers in various businesses and industries. Note that these exemptions will also be exemptions to the restrictions on non-resident travel announced on 4 May:
- The following groups are permitted to travel to the province, and do not have to self-isolate while travelling to their place of work in the province, but otherwise have to self-isolate when not at work in the province:
- asymptomatic workers arriving in the province from elsewhere in Canada who work in the trade, transportation, mining, agriculture, hydro-electric and oil & gas sectors, including truck drivers and the crews on any planes or vessels, including fish harvesting vessels;
- asymptomatic workers essential to the critical maintenance of the province’s infrastructure in the trade, transportation, healthcare, agriculture, fishing and aquaculture, hydroelectric, mining and oil and gas sectors;
- asymptomatic workers essential to the provision of critical health care in the province, including organ retrieval teams, medical flight specialists, crew on any plane serving as an air ambulance or medivac operation,
- The following groups are also exempt from the requirements to self-isolate and the restrictions on non-resident travel:
- individuals crossing the Labrador border from neighbouring communities for work or healthcare-related reasons; and
- individuals travelling to and from residences in the province and the offshore oil & gas facilities.19
- Asymptomatic workers who reside in the province but work elsewhere in Canada and return to the province do not have to self-isolate while travelling from their place of work to home but must otherwise self-isolate (with the exception that workers from the oil sands work camp at Kearl Lake, Alberta, who must immediately self-isolate upon arriving in the province).20
There is no timetable for any lessening of these travel restrictions – relaxation of these restrictions is not part of the “NL Life with Covid-19”plan or the actions associated with different Alert Levels.
Q. What does “self-isolation” mean?
A. The Public Health Protection and Promotion Act defines isolation to mean separating a person who has, or is suspected of having, a communicable disease from contact with people who are not infected.21 Along these lines the Government has been referring to “self-isolation” to be the process of physically separating from other individuals to protect against disease transmission including the following requirements:
- staying at home, not using public transportation or taxis and not going to work, school or other public places.
- only having visitors in your home who must absolutely see you
- limiting contact with seniors and other individuals with chronic medical conditions such as diabetes, lung problems or immune deficiency.
Q. Can people travel to the province to do business with me?
A. As of 4 May, the answer is most likely no.22 Travel to the province will be restricted to:
- residents of Newfoundland & Labrador;
- asymptomatic workers in critical industries previously subject to an exemption;
- individuals with a special exemption granted by the Chief Medical Officer of Health.
Further exemptions have now been granted to individuals (provided they make a formal request to the Chief Medical Officer):
- who have a significant injury, condition or illness and require the support of family members resident in Newfoundland and Labrador;
- who are visiting a family member in Newfoundland and Labrador who is critically or terminally ill;
- to provide care for a family member who is elderly or has a disability;
- to permanently relocate to the province;
- to fulfill a short term work contract, education internship or placement;
- who are returning to the province after completion of a school term out of province; and
- to comply with a custody, access, or adoption order or agreement.
Entry by any other person is prohibited. The previous exemptions to self-isolation requirements on travel (listed above) will continue to apply; these individuals will continue to be permitted to enter the province. There is no timetable for the lessening of these travel restrictions – relaxation of these restrictions is not part of the “NL Life with Covid-19”plan or the actions associated with different Alert Levels. Also note that these travel restrictions as implemented by the Government are in addition to national border travel restrictions implemented by the Government of Canada under the federal Quarantine Act.23 These include, as of 24 March 2020, the requirements for anyone entering Canada to self-isolate for 14 days, and restricting travel into Canada including across the border with the US.24
Q. How do the restrictions on personal care homes, long term care facilities, and assisted living facilities operate for employers?
A. Personal care homes, long term care facilities and assisted living facilities are subject to various restrictions on operations and who they can employ. On 14 April, it was ordered that operators of personal care homes and long term care facilities are prohibited from employing staff who work across multiple personal care homes and long term care facility locations, and are further prohibited from employing staff who have other employment simultaneous with working at the facility, unless required in exceptional circumstances and for which an exception has been granted.25 This means employers of these facilities are justified in requiring all employees, as a condition of continued employment, to disclose any other employment that the employee may have, whether at other facilities, or of any other kind. If the employer does not have confirmation of this information from an employee, the employer should refuse to permit that employee to report to work or otherwise to enter the facility. Should an employee identify an alternate employer, then that employee will have to elect whether they will continue in the employ of the personal care home or choose the other employer for at least the duration of the restriction. Also as of 29 April, operators at “assisted-living facilities” were subject to other restrictions on admissions and visitors, and requirements for screening.26 These restrictions will be in place for the foreseeable future; the “NL Life with Covid-19” plan does not contemplate the relaxation of these restrictions until the province reaches Alert Level 1. Further complicating matters is that the scope of employers subject to these restrictions is not entirely clear, as while “personal care home” is a term defined under the Personal Care Home Regulations27, neither “long term care facility” nor “assisted living facility” are defined under provincial legislation.
Q. Can I be charged with an offence for not complying with a prohibition above in a “Special Measures Order”?
A. Yes. Failing to comply with the requirements of the Special Measures Order (such as self-isolation when entering the province) is an offence under the Public Health Protection and Promotion Act.28 The fine on a conviction for a first offence for a person is a fine between $500 and $2,500, with the possibility as well of imprisonment for up to six months. On subsequent offences, the fine rises to between $500 and $5,000, along with the possibility as well of imprisonment for up to six months. Businesses failing to comply with the Special Measure Order (such as opening when prohibited) can be subject to a fine of $5,000 to $50,000 on first offence, and up to $100,000 on subsequent offences. Prosecution of such offences would be governed by the process and procedures of the Provincial Offences Act.
Q. Can police arrest persons who violate a “Special Measures Order”?
A. Yes. As a provincial offence under the Public Health Protection and Promotion Act and the Provincial Offences Act29, police officers have powers of arrest in certain circumstances. They also have the power to issue tickets for offences. Under the amendments to the Public Health Protection and Promotion Act that came into effect on 5 May, peace officers also have significant powers of search and seizure without a warrant, and may detain individuals who are in violation of public health measures and escort them to points of entry into the province.
If you are an employer who has concerns as to whether or how these requirements apply to you, or how to comply with these requirements, you should seek legal advice. Do not hesitate to contact us at firstname.lastname@example.org or to contact any of our Newfoundland and Labrador team.
1 The current Order can be found at https://www.gov.nl.ca/covid-19/files/Public-Health-Emergency-Extension-Declaration-May-17-2020.pdf
2 Public Health Protection and Promotion Act, SNL 2018 c.P-37.3 (“PHPA”), s 28.
3 SNL 2020, c.C-37.03
4 SNL 2020, c.T-4.02
5 The Newfoundland and Labrador Gazette, (2020) NL GAZ I, 93 https://www.gov.nl.ca/snl/files/NLG20200424.pdf
6 ibid, at Part II; Press Release 22 April 2020 Fisheries and Land Resources, Government of Newfoundland and Labrador, https://www.gov.nl.ca/releases/2020/flr/0422n02/
7 Special Measures Order (General) 11 May 2020 paragraphs 1 and 5
8 Special Measures Order (General) 11 May 2020 paragraph 1
9 Special Measures Order (General) 11 May 2020 paragraph 1
1o Special Measures Order (General) 11 May 2020 paragraph 1
11 Special Measures Order (General) 11 May 2020 paragraph 3
12 Special Measures Order (General) 11 May 2020 paragraph 1
13 Special Measures Order (General) 11 May 2020 paragraph 8
14 Exemption Order (Campsites) 17 April 2020 paragraph 1
15 Special Measures Order (General) 11 May 2020 paragraph 6
16Guidance for Gatherings, Government of Newfoundland and Labrador Health and Community Services
17 Special Measures Order (Travel) 15 May 2020 paragraph 3
18 Special Measures Order (Travel) 15 May 2020 paragraphs 4, 5 and 7
19 Special Measures Order (Self Isolation Exemption Order) 16 May 2020
20 Special Measures Order (Kearl Lake 22 April 2020
21 PHPA s 2(p)
22 Special Measures Order (Travel) 15 May 2020 paragraphs 1-2
23 SC 2005, c.20.
24 Minimizing the Risk of Exposure to COVID-19 inn Canada Order (Mandatory Isolation), Order in Council 2020-0175.
25 Special Measures Order (Personal Care Home and Long Term Care Facilities) 28 April 2020.
26 Special Measures Order (Assisted Living Facilities) 29 April 2020
27 NL Reg 15/01.
28 PHPA s 56.
29 RSNL 1995, Chapter P-31.1