On April 3, 2020, the Government of Ontario released an updated list of "essential workplaces" that significantly reduces the type of construction work that may be performed. The updated list is available here. For ease of reference, we have reproduced the explicitly construction-related workplaces herein:
Construction
27. Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
h28. Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance.29. Critical industrial construction activities required for,
i. the maintenance and operations of petrochemical plants and
refineries,
ii. significant industrial petrochemical projects where preliminary
work has already commenced,
iii. industrial construction and modifications to existing
industrial structures limited solely to work necessary for the
production, maintenance, and/or enhancement of Personal Protective
Equipment, medical devices (such as ventilators), and other
identified products directly related to combatting the COVID-19
pandemic.
30. Residential construction projects where,
i. a footing permit has been granted for single family,
semi-detached and townhomes
ii. an above grade structural permit has been granted for
condominiums, mixed use and other buildings, or
iii. the project involves renovations to residential properties and
construction work was started before April 4, 2020.
31. Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.
Businesses that are not on the updated list must close their physical locations by Saturday, April 4, 2020 at 11:59 p.m. For affected construction businesses, the closure of physical locations includes head offices and construction sites.
Take Another Look: You May be on the List
Generally speaking, it would appear from these provisions that private commercial construction projects that do not relate to healthcare, critical provincial infrastructure, the production of Personal Productive Equipment or petrochemicals must close by the aforesaid deadline. However, a closer review of the entire updated list indicates that construction operations omitted from items 27 to 31 may be included in other essential workplaces. It may be necessary to determine whether the nature of the end user's business under construction is an essential workplace. If it is, it is likely that the related construction is also an essential workplace. For example, suppliers that provide for curb side pick up or delivery are an essential workplace. See Item 15:
15. Stores that sell any of the following items and provide them to the customer only through an alternative method of sale such as curb side pick-up or delivery, except in exceptional circumstances:
i. Hardware products.
Businesses involved in the maintenance or repair of certain types of properties and buildings are considered essential workplaces. See item 20:
20. Maintenance, repair and property management services strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings.
Some construction-related manufacturers may fall under Item 23, which states:
- Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers, (e.g.primary metal/ steel, blow molding, component manufacturers, chemicals, etc.that feed the end-product manufacturer), regardless of whether those other manufacturers are inside or outside of Ontario, together with businesses that support and facilitate the movement of goods within integrated North American and global supply chains.
Other construction businesses dealing with road repair and maintenance, disposal, environmental rehabilitation and others may fall under the Item 34. The relevant part of Item 34 reads:
Community Services
34. Businesses that deliver or support the delivery of services including:
i. Sewage treatment and disposal.
ii. Collecting, transporting, storing, processing, disposing or
recycling of any type of waste.
iii. Potable drinking water.
iv. Critical infrastructure repair and maintenance including roads,
dams, bridges etc.
v. Environmental rehabilitation, management and monitoring, and
spill clean up and response...
Accordingly, construction businesses should review the entire list of essential workplaces and consider whether their specific service is included on the list. If you are uncertain whether a particular construction business or project is still an essential service, there is a hotline (1-888-444-3659) you may contact.
If you operate a non-essential business, you can still continue to operate if your staff can work remotely from home.
Based on the last extension of the declaration of a provincial emergency, it would appear that the closure of non-essential workplaces will apply until April 13, 2020. We will update you if this date is extended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
