In light of the current COVID-19 status in Manitoba, the Manitoba government has lessened certain restrictions relating to the operation of Manitoba businesses. Under the new guidance, not all businesses may reopen and those businesses that are deemed eligible to reopen, have rules they must follow in order to operate. Keep in mind that even if your business is required to remain closed and is not eligible to reopen there may be exceptions that allow limited operations for certain purposes.

 

Do you have questions about these new rules and restrictions, and how they might affect your business? We’ve put this guide together, to help you understand how the operations of a business in Manitoba might currently be affected.

 

First, let’s look at the legal framework for these rules. Section 67 of The Public Health Act (the “Act”) provides Manitoba’s Chief Public Health Officer the ability to make Orders for special measures in a public health emergency. On Thursday, January 21, 2020, twenty (20) new Orders were issued under the Act in response to the COVID-19 pandemic (collectively, the “Order”), replacing all previous Orders given under the Act.

 

The Order allows for certain businesses to reopen to the public. A business listed in the Schedule of the Order can continue to operate while complying with additional requirements. In addition, retail businesses may continue to operate with in person retail sales, subject to additional requirements. A business that is not listed in the Schedule is not allowed to reopen, and must remain closed to the public effective January 22 – February 12, 2020, subject to exceptions.

 

The Order is available here.

 

Please note that the Manitoba government has indicated the Order may be extended or otherwise modified in the future.

 

  1. Is your business permitted to open?

a. Is your business listed under the Schedule?

 

Section 4(1) of the Order allows for businesses listed in the Schedule to open (a “Scheduled Business“). If you would like to determine if your business is permitted to open, you should review the Schedule.

 

For example, if your business operates a pet store which supplies pet food and pet supplies, your business is permitted to open pursuant to Section 22 of the Schedule:

 

Agriculture, Food Production and Animal Care

22. A business that supplies goods or services for the health and well-being of animals, including feed and supplies such as bedding.

 

b. Is your business considered a retail business?

 

Section 5(1) of the Order allows for retail businesses to open, subject to additional requirements (a “Retail Business“). The Order defines a retail business as:

 

a business that sells goods or products for use or consumption by individual purchasers and includes a grocery store, pharmacy and hardware store.

 

For example, if your business sells clothing to individual purchasers, your business your business meets the definition of retail business and is permitted to open pursuant to Section 5(1) of the Order.

 

c) Is your business listed elsewhere in the Order?

 

If your business is explicitly mentioned elsewhere in the Order, you are allowed to open, subject to any additional requirements as outlined in the order (a “Listed Business“).

 

For Example, if your business is a hairdresser or barber, you are permitted to open pursuant to Section 18(1) of the Order:

 

Hairdressers and Barbers

18(1) A business that provides hairdressing or barber services may open, provided that the only services provided involve the washing, cutting, colouring or styling of hair.

 

  1. Additional Requirements

 

a. If your business is a Scheduled Business

 

If your business is listed under the Schedule and is permitted to open, you must ensure that your business is compliant with the additional requirements that are outlined in the Order. The additional requirements require you, as operator of the Scheduled Business, to put in place measures to ensure that appropriate physical distancing rules are followed.

 

Section 4(2) of the Order states that a Scheduled Business may open, however:

 

If a business listed in the Schedule allows members of the public to attend, the operator of the business must implement measures to ensure that members of the public attending the business are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Examples of implementation of the additional requirements in the Order can include: limiting the number of people in a place of business, relocating staff in a place of business, and/or visible space barriers (such as markings on the floor or plastic dividers) in a place of business.

 

In addition, Section 20(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping. The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier. Section 20(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable. Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

b. If your business is a Retail Business

 

If your business is a Retail Business and is permitted to open, you must ensure that your business is compliant with the additional requirements that are outlined in the Order. The additional requirements necessitate you, as the operator of the Retail Business, to put in place measures to ensure that appropriate physical distancing rules are followed.

 

Section 5(1) of the Order states that a Retail Business may open, however, at a reduced capacity. Namely, the operator of a Retail Business must:

 

limit the number of members of the public at the business to 25% of the usual capacity of the premises or 250 persons, whichever is lower; and

implement measures to ensure that members of the public at the business are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Examples of implementation of these additional requirements in the Order can include: limiting the number of people in a place of business, relocating staff in a place of business, and/or visible space barriers (such as markings on the floor or plastic dividers) in a place of business.

 

In addition, Section 5(3) of the order states that the operator of a Retail Business must:

 

establish a system to ensure compliance with the applicable capacity limits set out in [Section 5(1)]; and

on request from a person authorized to enforce these Orders, provide proof that the capacity limits have not been exceeded at the time the request is made.

 

Examples of the implementation of these additional requirements can include: counting the number of people entering and leaving the business, and/or keeping a real-time record of number of people in the business.

 

In addition, Section 20(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping. The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier.  Section 20(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable. Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

c. If your business is a Listed Business

 

If your business is a Listed Business and is permitted to open, you must ensure that your business is compliant with the additional requirements that are outlined in the Order. The additional requirements require you, as the operator of the Listed Business, to put in place measures to ensure that appropriate physical distancing rules are followed.

 

For example, while the Listed Business of a hairdresser or barber under Section 18(1) may reopen, the business operator must comply with Sections 18(2) and 18(3):

 

18(2) The operator of a business that provides hairdressing or barbering services must

(a) subject to subsection (3), implement measures to ensure that members of the public are reasonably able to maintain a separation of at least two metres from other members of the public;

(b) limit the number of members of the public at the business to 25% of the usual capacity of the premises or one person, whichever is higher; and

(c) obtain written contact information from each client and retain this information for 21 days, after which it must be destroyed by the operator.

18(3) Chairs and other workstations at a business that provides hairdressing or barbering services are not required to be at least two metres apart if non-permeable physical barriers are placed between all chairs and other workstations.

 

In addition, Section 20(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping. The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier. Section 20(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable. Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

  1. What if my business is not a Scheduled Business, Retail Business, or Listed Business?

 

If your business is not a Scheduled Business, Retail Business, nor a Listed Business, Section 6(1) of the Order provides that your business must remain closed to the public from January 22nd to February 12th (this date may be reviewed and extended, in the future). However, there are exceptions to this closure requirement. The two exceptions outlined in the Order include the ability of closed businesses to operate remotely, and temporary access to a closed business.

 

a. Operating Remotely

 

Sections 6(3) and 6(4) of the Order state that closed businesses are not prevented from operating online, by telephone or other remote means. This means that closed businesses may continue to operate:

 

  • to accept deliveries of goods and other supplies; and/or
  • if customers order or purchase goods online or over the phone, rather than making in-store orders or purchases. In this case, the customer could arrange for pick-up of the purchased goods or they could be delivered by the closed business to the customer
    • if members of the public attend the closed business to pick up goods, the operator must implement measures to ensure that members of the public attending are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Staff may still work in-store to facilitate these remote activities. This will allow the closed businesses to receive and fulfill orders online or over the phone. Examples could include a restaurant that offers food for delivery or takeout, or a business that has employees preparing goods for sale and delivery, in a warehouse.

 

In all cases, the key is that customers are not coming on-premises to make purchases or orders, and that everyone on the premises observe physical distancing.

 

In addition, Section 20(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping. The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier. Section 20(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable. This would apply to a customer attending to an indoor public place to pick up goods. Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

b. Temporary Access

 

A closed business can be accessed temporarily. Section 6(2) of the Order states that temporary access to a closed business is authorized (unless otherwise prohibited by an applicable law) for the following purposes:

 

  • performing work at the place of business in order to comply with any applicable law;
  • allowing for inspections, maintenance and repairs to be carried out at the place of business or facility;
  • allowing for security services to be provided at the place of business or facility; or
  • attending the business or facility to deal with critical matters relating to its closure.

 

Examples of situations where temporary access to a closed business is allowed could include where someone is physically present at the business to perform repairs, provide security services, and/or deal with matters relating to the close of the business that cannot be done remotely.

 

  1. Legal Information and Considerations for Your Business

 

This is general information only, and does not constitute legal advice. To determine if your business is allowed to open and what additional requirements or exceptions apply to the operation of your business, the specific circumstances surrounding your business will need to be considered.

 

We recommend that you continuously monitor all federal and provincial announcements as well as the implementation of respective orders, as the law surrounding the COVID-19 pandemic is evolving on a daily basis. Based on the measures taken in other jurisdictions, we anticipate there may be ongoing refinements to list of businesses and their operational abilities.

 

We recommend that you seek assistance from legal counsel where appropriate. Please do not hesitate to contact us if you require assistance with:

 

  • Determining if your business is a Scheduled Business, Retail Business or a Listed Business;
  • Determining if your business is permitted to open;
  • Deciding how your business should operate in these circumstances; and/or
  • Implementing processes and protocols to ensure compliance with the law.

 

Please do not hesitate to contact your relationship partner or lawyer if you have any questions or if we can be of assistance in guiding you through these new challenges.

 

This article was prepared by:

 

ANDREW J.D. BUCK
PARTNER
204.956.3569
[email protected]

 

ELIZABETH CZYRNYJ
LAWYER
204.956.3548
[email protected]

 

MATTHEW KNOLL
ARTICLING STUDENT-AT-LAW
204.956.0651 ext. 281
[email protected]

 

This article represents general information and is not legal advice. Please contact us if you would like legal advice that is tailored to your particular circumstances. We would be happy to help.