COVID-19 - How does the List of Essential Workplaces Impact the Crane Rental Industry?

On the evening of March 23, 2020, the Premier's Office released a List of Essential Workplaces, which would be permitted to remain open during the current COVID-19 related closure of all non-essential businesses, which is presently scheduled to last for the next 14 days, beginning at midnight on March 25, 2020.  We have already learned that governmental responses to the COVID-19 pandemic can change drastically with little notice.  As such, in reviewing the List of Essential Workplaces, please consider that this list might change in the future.  If there are changes to this list, or to the provincial emergency declaration underlying it, we will keep you posted.

This document answers several questions that have been asked since the List of Essential Workplaces was first circulated.  If you have any further questions, as I outlined in my last e-mail, feel free to contact the CRAO's lawyer, Jonathan Maier at 647.274.5964 or jonathan-maier@hicksmorley.com.  As a CRAO member, you are entitled to one hour of free legal advice from Jonathan each month.  To offer support to our members during this very difficult time, please feel free to use this benefit to discuss any COVID-19 questions that are impacting your business.

Q:  What parts of the Construction Industry have been declared "Essential?"

Within the List of Essential Workplaces, there are many parts of the construction industry that have been allowed to continue operating.   These are:

1.  Industrial, Commercial and Institutional ("ICI") Construction - This is a very broad sector that includes the construction of factories, warehouses, office buildings, retail facilities, and government buildings and structures.

2.  Residential Construction - Separate from work in the ICI sector, all construction work in the residential sector has also been allowed to continue

3.  Healthcare Construction Projects -   This includes constructing a new hospital, renovating an existing hospital, repurposing an existing space for a new healthcare purpose, or hoisting an HVAC unit, elevating device, or other material at a health care facility.

4.  Critical Provincial Infrastructure Projects - This includes any construction work that is required to ensure the safe and reliable operations of transit, transportation, energy and justice sectors.  As well, construction projects involving railways, dams, bridges, highways and other critical public infrastructure are deemed essential.

5.  Health and Safety Environmental Rehabilitation Projects - If a particular project might be outside of the ICI sector, but involves health and safety environmental rehabilitation projects, that work can continue.

Q:  Outside of the Construction Sector, are there other Essential Workplace Categories that will cover other aspects of Crane Rental Work?

Yes. Employers in the crane rental industry don't need to fit their operations within the construction industry categories in order to continue working.  There are several other essential workplace classifications that may be useful, depending on the specific work that your company performs.  These are:

ICI and Residential Maintenance Work - Businesses that provide support and maintenance services, including urgent repair to maintain the safety, security, sanitation, and essential operation of industrial, commercial, institutional and residential properties and buildings.

Transportation Maintenance and Repair Work - If your company provides services for the operation, maintenance or safety of land, sea, air or rail transportation systems, this work has been deemed essential under a separate category outside of those that deal with the construction industry.

Work that Supports the Delivery of Utilities and Community Services - If your company is involved in work that supports the continued generation, transmission, distribution and storage of electricity, that work is essential and can continue.  The same designation has been given to work involving natural gas distribution, transmission and storage.  Even though road maintenance is likely covered under "transportation maintenance and repair work", there is a separate recognition of road construction and maintenance as essential work.

Rental and Leasing Services - Even if a project may not fit within the construction industry provisions or the maintenance work provisions described above, there is also a recognition that rental and leasing services, including the rental and leasing of light industrial machinery and equipment rental are essential workplace activities.  While heavy equipment rental is not specifically named in the List of Essential Workplaces, it could fit under the broader classification of "equipment rental".

Supplying Services to other Essential Workplaces - In total there are 74 paragraphs that describe the essential workplaces that are currently allowed to carry on business.  Workplaces as diverse as drycleaners, automobile dealerships and liquor stores are all included.  The very first paragraph in the List of Essential Workplaces states that "businesses that supply other essential businesses or essential services with support, supplies, systems or services" that are necessary to operate, will themselves be classified as essential workplaces.  This is a potentially broad category that could address a great deal of work performed in the crane rental industry that may not be covered by the other categories referred to above.

Q.  If my business fits within one or more of the categories in the List of Essential Workplaces, does that mean that I must continue to operate?

No.  Even though your business might be recognized as one that should remain open, despite a broader closure of businesses in the province you are not being forced to remain open for business.

Q:  I have an employee who has told me that they don't want to work because they are scared that they will be exposed to COVID-19 if they are in public.  What can I do?

Employees have the right to refuse unsafe work.  However, at the moment, employees are not entitled to start a work refusal that is based on a general fear of exposure to COVID-19.  If an employee has been quarantined or has started to self-isolate because of recent travel abroad or known exposure to an individual who has tested positive for COVID-19, that is a different situation.  That person's inability to attend work is based on specific circumstances and not a general fear of exposure to the disease.  Employees who do not report to work because of specific circumstances related to COVID-19, such as a self-isolation requirement or a requirement to care for a relative who is self-isolating or who has had their daycare or school cancelled must be dealt with differently.

Q:  I have an employees who have been directed to self-isolate because of a recent trip abroad and who can't come to work because they need to care for their child due to a school or daycare closure.  What can I do?

These employees have specific reasons why the cannot attend work which are related to COVID-19.  Last week, the Provincial government enacted new leave of absence rules that apply to these circumstances.  If an employee cannot attend work because of a requirement to self-isolate or because they are providing care or support to a family member due to a COVID-19 situation like a relative's own self-isolation, or the lack of daycare or school supervision available, that employee is entitled to a job-protected leave of absence as long as their specific COVID-19 circumstances keep them from attending work. During any leave of absence, an employer must continue to pay its employee benefit premiums on the employee's behalf, as long as the employee continues to pay their own share of any benefit premiums.

Q:  Where can I get more information about COVID-19 and my rights and responsibilities as an employer?

You can access additional resources regarding COVID-19's impact on employers at https://hicksmorley.com/expertise/coronavirus/  This website includes a list of helpful government resources, along with more detailed guides on the issues identified above.

Jason Hanna
President