As the COVID-19 pandemic continues to spread, the Alberta government may begin requiring the closure of private facilities to slow transmission of the virus. In that scenario, there is uncertainty as to which facilities might be forced to shut down and which may remain open. The key consideration will be which businesses and operations are “essential services.” The question then becomes: does your business provide “essential services” such that it will be able to remain open?
On March 17, Alberta’s Chief Medical Officer of Health (CMOH) declared a public health emergency (the Emergency Order) in an effort to combat the spread of COVID-19. The Emergency Order was made under the authority of the province’s Public Health Act (PHA) and is set to last until rescinded.
The PHA gives the CMOH broad and sweeping authority to take whatever steps are, in the CMOH’s opinion, necessary to lessen the impact of a public health emergency. As set out in the Emergency Order, the CMOH has authority to prohibit a person from attending a location for any period, and subject to any conditions that the CMOH considers appropriate. These broad powers would include a temporary shutdown of all non-essential businesses in Alberta.
At present, the Emergency Order prohibits mass gatherings for more than 50 attendees. However, if a place of gathering provides “essential services,” the restriction does not apply:
Effective immediately, all persons in the Province of Alberta are prohibited from attending the following locations or places where the activities listed are taking place:
1. Mass gatherings of more than 50 attendees. This includes places of worship, gatherings and family events such as weddings. Grocery stores, shopping centres, health care facilities, airports, the legislature and other essential services are not included.
At this time, it does not appear as though the restriction applies to industrial facilities.
It is worth noting that the public health emergency set out in the Emergency Order is different from a provincial state of emergency, which is governed by the Alberta’s Emergency Management Act (EMA). If a provincial state of emergency is called, the government would have even broader powers to control movement and business operation in the province.
Essential services defined
Neither the PHA nor EMA defines the term “essential services.” This is likely because the government requires flexibility in determining which services are essential based on the circumstances at the time. From the Emergency Order, we know the list currently includes: grocery stores, shopping centres, health care facilities, airports, and the legislature. Non-essential services include: public recreational facilities, private entertainment facilities, gyms, swimming pools, arenas, science centres, museums, art galleries, community centres, children’s play centres, casinos, racing entertainment centres, bingo halls, bars and nightclubs where minors are prohibited, and places of worship. Given the broad powers set out in the PHA, this list is subject to change.
While there is no definition as to what constitutes an “essential service” in the private sector, there is some guidance from the public sector.
The Alberta Emergency Management Agency is established under the authority of the EMA and the Government Emergency Management Regulation to ensure essential government services operate during and after an emergency. The Emergency Management Agency, in its 2017 Business Continuity Guide, defines the term “essential services” widely as “a product or benefit delivered directly to external stakeholders by departments of the Government of Alberta. Essential services are delivered to either citizens of Alberta, including, but not limited to individuals, families, organizations or local governments; and other departments of the Government of Alberta or other levels of government that support the citizens of Alberta.” There are four categories of essential services:
- Critical – Services that must resume within 24 hours or will definitely result in injury, loss of life, infrastructure destruction, loss of confidence in the government, and significant loss of public revenue.
- Vital – Services that must resume within 72 hours or will likely result in injury, loss of life, infrastructure destruction, loss of confidence in the government, and significant loss of public revenue.
- Necessary – Services that must resume within two weeks or could result in considerable loss, further destruction of infrastructure, or disproportionate recovery costs.
- Desired – Services that could be delayed for two weeks or longer, but are required in order to return to normal operating conditions and alleviate further disruption or disturbance to normal operating conditions.
Further, the severity of disruption of government essential services is measured using seven factors:
- the manageability of the disruption;
- the threat to staff health and safety;
- the damage potential of essential services and records;
- severity of damage to government infrastructure;
- the effect on interdependent services and elements;
- the financial impact; and
- the visibility of the event.
For each of these factors, the disruption may be further classified as either minor, moderate, major or extreme.
While it may not be fully applicable to the private sector, the Alberta government may apply similar criteria in determining which private sector businesses provide essential services in Alberta. Key considerations may include potential for an injury or loss of life, infrastructure destruction, manageability of the disruption, and the effect on interdependent services and elements.
Does your business provide an essential service?
Currently, there is no system in place for a private sector company to pre-emptively apply for an essential service provider designation. However, asking government to consider a business to be an essential service provider after a closure will be difficult: the courts or agencies that would ordinarily review such orders may be inaccessible. Accordingly, we recommend a proactive approach, including reaching out to government to discuss potential orders requiring industrial closures.
Considering again the Government of Alberta Business Continuity Guide, it may be wise to develop a business continuity plan (BCP) similar to those prepared by various government departments. This is especially true in the current context, where decisions about closures might be made urgently, and the government has a limited time to contemplate the impact on various businesses.
A BCP is a risk management document that discusses business impact analysis of activities and their essentiality in Alberta. The BCP should include the following:
- a discussion of the nature of business and the nature of the services delivered;
- an analysis of direct and indirect impacts of disruptions on the province and its citizens;
- an assessment of critical services and list of the resources (personnel, contractors, suppliers, and other assets) that must remain at the facility to ensure proper operation.
The Government of Alberta Business Continuity Guide contains significant information on developing a BCP.