On April 8, 2021, the British Columbia Public Health Officer announced an upcoming “expedited workplace closure order” affecting workplaces in British Columbia (the “Announcement”).
The Announcement indicated that an order could be made by WorkSafeBC to close a workplace where 3 or more employees had contracted COVID-19 and there was evidence of transmission in the workplace leading to those infections. The Public Health Officer suggested that the closure would likely be for 10 days, or potentially a longer period depending on the circumstances. The Announcement also indicated that a list of closed businesses would be made available to the general public.
At the time of the Announcement, it was expected that many businesses – such as essential services – would be exempt from closure under the new Order.
The Delegation Order came into effect at midnight on April 12, 2021. The full text of the order can be found here (the “Order”).
Broadly, the Order authorizes officer employed by WorkSafeBC officers to operate under the Public Health Act. However, it is materially different from the Announcement in a number of respects.
First, it provides that if a medical health officer reasonably believes that one or more persons have been infected with COVID-19 while in a workplace and that is necessary for the workplace, or party of the workplace, to stop operating to prevent further transmission of COVID-19, the officer may make orders to close the workplace. Gone is the reference to 3 or more employees as noted in the Announcement.
Second, a medical health officer, and not a designated employee of WorkSafeBC, must make a Workplace COVID-19 Cases, Cluster and Outbreak Closure Order, which is then served by a WorkSafeBC officer. The Order must be posted in the workplace. We understand the WorkSafeBC employees will be tasked with secondary inspections prior to re-opening, although the Order is silent on this point.
Third, there are no essential businesses or services listed in the Order. Presumably the Order does not apply to a wide variety of businesses and workplaces, but the Order provides no guidance.
Fourth, there is no maximum closure time for businesses. In the Announcement, closures of 10 days were mentioned, but guidance on this topic is absent from the Order. Presumably reopening will be dependent on the last known COVID-19 infection date in the workplace – so theoretically, a workplace closure may extend for weeks, not 10 days.
Fifth, the Announcement suggested publication of any closed business by the Provincial Health Officer or a designate. The Order is silent on publication terms. We assume local health authorities will expand publication and identification of impacted worksites.
Regardless of these differences between the Order and the Announcement, employers should:
- Ensure that mandatory COVID-19 Safety Plans are in effect and in compliance with WorkSafeBC guidelines. Given the Order, in the event a worker contracts COVID-19, whether in or outside of the workplace, an inspection of an Employer’s operations by WorkSafeBC is likely, as is a subsequent inspection.
- If they have not already done so, institute contingency plans for remote operations in the event of a direction to close a workplace or part of a workplace.
- Consider the public relations impact, if any, should a closure order be issued and the closure is publicized by regulators.
Finally, beyond the Order, remember that employers still have the general duty to ensure the health and safety of their workplace. With the provincial government using the Orders, in part, to demonstrate to the public that they are responding to the “third wave”, employers can expect increased scrutiny from WorkSafeBC as case counts continue to increase throughout the province.
If you have any questions about this matter, other COVID-19 related issues, or would like any other workplace law assistance, please contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.