On April 10, 2020, BC’s Provincial Health Officer (PHO) issued an updated order regarding self-isolation requirements for travellers coming into British Columbia from outside of Canada. This order provides additional clarification for employers of workers who have travelled outside Canada including those who must commute across the US/Canada border in order to work in British Columbia as well as those who do so as part of their duties.
The general requirement that travellers who arrive from any country outside of Canada must self-isolate for 14 days remains in place. The updated order includes the new requirement that travellers arriving in Canada have an approved self-isolation plan. The updated order and an additional guidance document also provide clarification regarding exceptions for essential service workers under the federal and provincial travel orders, as well as requirements for employers who provide housing for their employees.
When Do Cross-Border Essential Service Workers Need to Self-Isolate?
The updated order confirms the multi-step inquiry required to determine whether an individual employee can be exempted from the requirement to self-isolate after travelling into British Columbia from outside of Canada. As outlined below, this inquiry is to be done on an individualized basis.
Federal exemption: note that if an employee is providing a service deemed essential under federal guidelines, and meets the definition of an “exempted person” under federal Quarantine Act orders, the employee is not subject to the requirements of the British Columbia Order. The scope of “exempted person” under the federal Quarantine Act orders is detailed further at the end of this article.
For all other employees, employers will need to complete the inquiry below.
First, an employer must identify which of its employees meet the definition of a “traveller”:
All persons entering Canada through British Columbia or coming into British Columbia after entering Canada after April 8, 2020.
Second, the employer must identify if the employee is an essential services worker, meaning that they provide services considered critical to preserving life, health, public safety and basic societal functioning. Employers should review the list of essential services within B.C. dated March 26, 2020, for guidance.
Third, the employer’s leadership team must determine on an individual basis that the employee is critical to delivering these essential services. This determination must take into account the following principles:
- Preventing new introductions of COVID-19 into British Columbia is of paramount importance to limiting the spread of the virus.
- As a baseline, ALL travelers from outside Canada are considered potential carriers of the virus and should self-isolate at home or a similar place in which to stay.
- To preserve essential services, it is key to consider the risk that a returning worker could pose by endangering the health of multiple other essential service workers, which could jeopardize an organization’s ability to provide essential services.
Fourth, the employer must establish thresholds beyond which it would be difficult to deliver essential services, and assess whether these thresholds have been reached before deciding whether to permit an employee who is a traveller to work.
Fifth, the employer must conduct an overall risk assessment to determine whether or not to permit the employee to work. This risk assessment must take into account:
- where the person travelled, recognizing that many countries in the world are experiencing significant community transmission of the virus.
- duration and type of activity while away (family visit rather than attending an event involving a large gathering of people).
- whether the worker or any member of the worker’s household is displaying symptoms of illness. If a worker or any member of the worker’s household is displaying symptoms of illness, the worker or member of the household must be assessed by a health professional, and infection with SARS-CoV-2 ruled out before the worker may be considered for return to work.
- the work environment of the individual e.g. whether they work independently, outside or in a group setting, and the risk of the worker transmitting infection to co-workers.
Sixth, if after conducting all the foregoing analysis, the employer permits the employee to work, the employer must put into place a protocol to prevent the transmission of COVID-19. The updated order then requires employees to do the following:
(a) follow the COVID-19 infection control protocol of their employer to prevent the transmission of SARS-VoV-2 infection;
(b) self-monitor daily for signs and symptoms of illness;
(c) follow infection prevention and control protocols including diligent hand hygiene;
(d) avoid standard greetings that require physical contact, such as shaking hands;
(e) to the extent practical, reduce close contact with other workers by maintaining a two metre separation and avoiding shared spaces;
(f) avoid close contact with others when travelling to and from work and between shifts;
(g) self-isolate at home on days when they are not required at the workplace as described and they must follow all of the recommended procedures provided to them by an information and support officer including procedures issued by the British Columbia Centre for Disease Control;
(h) avoid any unnecessary visits to public establishments;
(i) call 811 or their health care practitioner if they have come in contact with anyone who has tested positive for COVID-19 and who is self-isolating as instructed to do so by a health professional;
(j) if they exhibit symptoms of illness call their health practitioner or 811 and self-isolate for 14 days unless instructed otherwise by a health practitioner; and
(k) submit to such medical tests and provide such specimens as are, from time to time, considered necessary by their health professional for the purpose of identifying or controlling the transmission of SARS-CoV-2.
Diligent compliance with the requirements above will be important to ensuring that an essential service organization remains covered under the Minister’s April 2, 2020 order, which protects essential services organizations from liability for damages caused by exposure to COVID-19 provided that they have been compliant with the PHO’s orders.
Employers that Provide Employee Housing
The PHO’s April 10, 2020 travellers order also provides specific guidance to employers who provide housing to employees. In such circumstances, the employer has the following obligations:
(a) unless the worker is an exempted person, ensure that your worker self-isolates for 14 days after entering Canada;
(b) develop a COVID-19 infection control protocol for each worksite for which you are responsible to prevent the risk of transmission of infection amongst workers;
(c) provide for a rapid medical response if a worker develops symptoms of illness while at work; and
(d) maintain high levels of workplace and worker hygiene.
“Exempted Person” under Federal Quarantine Act Orders
As noted above, an “exempted person” under the federal Quarantine Act orders is exempted from the general requirement to self isolate. This is a narrow exception that applies only to specified groups of individuals including those providing the list of services deemed to be essential in the federal sphere and where the employee is arriving in Canada solely for the purpose of providing the essential services. This includes the following individuals:
(a) a crew member as defined in subsection 101.01(1) of the Canadian Aviation Regulations or a person who enters Canada only to become such as crew member;
(b) a member of a crew as defined in subsection 3(1) of the Immigration and Refugee Protection Regulations or a person who enters Canada only to become such as crew member;
(c) a person who enters Canada at the invitation of the Minister of Health for the purpose of assisting in the COVID-19 response;
(d) a member of the Canadian Forces or a visiting force as defined in section 2 of the Visiting Forces Act;
(e) a person or any person in a class of persons who, in the opinion of the Chief Public Health Officer will provide an essential service while in Canada; [see list below]
(f) a person whose presence in Canada, in the opinion of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration or the Minister of Public Safety and Emergency Preparedness, is in the national interest;
(g) a person permitted to work in Canada as a provider of emergency services under paragraph 186(t) of the Immigration and Refugee Protection Regulations;
(h) a person who enters Canada for the purpose of providing medical care or transporting essential medical equipment, supplies, or means of treatment; or
(i) a person who enters Canada for the purpose of receiving essential medical services or treatments, other than services or treatments related to COVID-19.
Essential Services as defined by the Federal Chief Public Health Officer:
- Persons making necessary medical deliveries during or within a reasonable period of time of the duration of the Order in Council Minimizing the Risk of Exposure to COVID-19 Coronavirus Disease in Canada Order (Mandatory Isolation) or within reasonable time after that, of cells, blood and blood products, tissues, organs, or other similar lifesaving human body parts, that are required for patient care in Canada;
- Asymptomatic persons in the trade and transportation sector who are important for the movement of goods and people, including truck drivers and crew on any plane, train or marine vessel, and that cross the border while performing their duties or for the purpose of performing their duties;
- Asymptomatic persons who have to cross the border regularly to go to work, including in the health care sector or critical infrastructure workers for the purpose of performing their duties; and
- Asymptomatic persons who have to cross the border to provide essential services, including emergency responders and personnel providing essential services to Canadians related to the COVID-19 outbreak.
If you have any questions about this article, please contact Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
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