In an attempt to slow the spread of COVID-19, the provincial government has ordered the closure of all “non-essential” services, effective March 24, 2020 at 11:59 p.m. Only businesses that the government has deemed to provide a “essential service” are allowed to remain open thereafter. This order is expected to remain in effect for two weeks unless terminated earlier or extended by Ontario’s Lieutenant Governor in Council.
List of essential workplaces in Ontario
The provincial government released its listing Essential Workplaces, which includes 74 categories of businesses and services allowed to remain open for the duration of the emergency order. The list includes companies from many different industries, including supply chain, manufacturing, construction, finance, transportation, and healthcare, among others.
Here’s a look at some of the businesses Ontario has deemed to provide essential services and are allowed to stay open:
- Businesses that provide other businesses or essential services with support, supplies, systems, or services;
- Companies that extract, manufacture, process and distribute goods, products, equipment and materials, including companies that manufacture inputs for other manufacturers;
- Companies, facilities and services that support and facilitate the two-way movement of critical goods within North American and global supply chains;
- Retail and wholesale businesses such as grocery and convenience stores, pharmacies, pet stores, liquor stores, gas stations and hardware stores;
- Certain maintenance and construction operations, including construction projects associated with the healthcare, transport and energy sectors;
- Construction works and services in the industrial, commercial, institutional and residential sectors;
- Utility companies, including electricity providers, waste collection, water treatment plants and natural gas distributors;
- Most transportation providers;
- All police, fire and medical emergency services;
- Certain manufacturing and production facilities, agricultural businesses, and businesses that support environmental management, spill cleanup, and response;
- Newspaper publishers, radio and television companies, telecommunications companies and their technical facilities and data centers;
- Capital markets, banking, companies that provide pension, benefits and payroll processing services;
- Certain resource providers, including mining operations, mineral exploration, and companies that provide global continuity of forest and petroleum products;
- Rental and leasing services, including rental of automotive, commercial and light industrial machinery and equipment;
- courier, shipping, courier and delivery services;
- Professional services, including lawyers, paralegals, engineers, accountants and translators;
- funeral services;
- land registration services and real estate agent services; and
- Most healthcare, aged care and social services, including medical professionals providing emergency care, laboratories, manufacturers of pharmaceuticals and medical supplies, mental health services and other organizations that support the provision of food, shelter, security or protection, and/or social services and other necessities of life to economically disadvantaged and other vulnerable people.
Gyms and recreation centers, shopping malls, retail stores, salons and spas, theaters, sports and concert halls, and museums are businesses that are not considered essential services.
Note that teleworking and e-commerce are authorized at all times for all companies.
The Government of Quebec has also published its list of essential services. For companies with operations in Quebec, the list can be consulted here. Unlike Quebec, the Ontario government does not have a process in place for businesses that conduct activities that are not on the list to apply for essential business designation.
During a declared emergency, the power to make an order requiring the closure of any place, business, office or other establishment is provided in subsection 7.0.2(4) of the
Emergency Management and Civil Protection Act (the “MEPL”).
Although the EMCPA does not state that an emergency order must be codified in the form of a regulation, it does specify that an order is effective when issued. Based on other recent government emergency orders relating to the COVID-19 pandemic, it is likely that a regulation identifying the government’s official list of essential services will be released in the coming days. All regulations made under the EMCPA can be found here.
Businesses that fail to comply with an emergency order risk committing an offense under MEPA and may be subject to a fine of up to $10,000,000. Directors or officers of a corporation may also be subject to a fine of up to $500,000 and imprisonment for up to one year.
Essential service businesses that remain open must still comply with Ontario occupational health and safety legislation for their employees, which requires employers to take reasonable precautions for the protection of their workers. Amid the COVID-19 pandemic, what is reasonable will largely depend on the circumstances and characteristics of the work environment and the likelihood of a possible workplace outbreak. In the event of a conflict between the EMCPA or an order made hereunder and the Occupational Health and Safety Act (the “OHSA”)the OHSA will prevail.
In addition, an employee who honestly and objectively believes that the condition of the workplace is likely to endanger him or her has the right to refuse unsafe work under the work refusal provisions of the OHSA. To find out if “essential service” workers can legally refuse to work in Ontario, please see our recent update here.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.