Many Canadian businesses rely on regular cross-border trips by US-based workers. Whether it is to maintain machinery and equipment or oversee operations, these visits are usually of short durations and are time-sensitive. Sometimes, the US based workers are even Canadian citizens or permanent residents who still have to isolate for 2 weeks upon arrival in Canada. Other times, they are just coming in as (IRPA section 186) business visitors or may have NAFTA or Intra Company Transferee work permits covering their time in Canada.

The mandatory 14-day isolation period really throws a wrench into things (I know, terrible pun), because suddenly a 3-day visit to repair a piece of equipment becomes a 17 day visit, the first 14 of which the equipment cannot be touched by the worker.

So what can Canadian organizations do to ensure that (1) they are adhering to public health rules and doing their part to stop the spread of Covid-19 and (2) keep their Canadian operations running smoothly so that delays don’t negatively impact their Canadian employees, market competitiveness or production?

Some form of travel restrictions are likely for the foreseeable future. And even if you are allowed to travel, the 14 day isolation is now the default. This is all mandatory by provincial public health orders and section 58 of the Quarantine Act:

Emergency Orders
Order prohibiting entry into Canada

58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that

(a) there is an outbreak of a communicable disease in the foreign country;

(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;

(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and

(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.

However, there are exceptions to the rules. The current exemption process involves requesting both federal and provincial approval. The federal process is outlined here:

Federal exemption to mandatory quarantine (14 day isolation period):

The Canadian Border Service Agency (CBSA) in conjunction with the Public Health Agency of Canada (PHAC) are given the authority to grant exemptions from quarantine required by the federal order (OIC 10). Whether an exemption from quarantine is granted to an individual under the federal order is determined solely by the CBSA and PHAC. Information regarding requirements for an exemption to the Federal order can be found here.

PHAC issues letters of interpretation and provides an assessment as to whether an individual qualifies for an exemption under OIC 10. The letter is useful for anyone seeking entry to Canada as it is an important piece of information for CBSA to consider when making their final determination to permit entry and exemption from the quarantine requirements.

Federal Eligibility:

Who is eligible to travel to Canada: Foreign nationals, including United States (US) citizens, can travel to Canada only if they’re eligible. Restrictions vary depending on where you are coming from.

If you’re travelling to Canada from outside the US
You must be both:
• exempt from the travel restrictions and
• travelling for an essential (non discretionary) purpose

All other foreign nationals:
To be eligible, you must meet 2 requirements:
•You must be travelling for an essential (non-discretionary) purpose
•You must be either
· travelling directly from the US
· exempt from the travel restrictions

Travelers coming from outside the US who are exempt from the travel restrictions:
• any person who does not pose a significant harm to public health, in the opinion of the Chief Public Health Officer of Canada, and who will provide an essential service while in Canada

Federal exemption provisions for essential service workers

Pursuant to paragraph 6(e) of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 2, issued pursuant to section 58 of the Quarantine Act, the Chief Public Health Officer may determine a class of persons who provide an essential service while in Canada.

As determined by the Chief Public Health Officer, at this time, the following class of persons are exempt:

Persons in the trade or transportation sector who are important for the movement of goods or people, including truck drivers and crew members on any aircraft, shipping vessel or train, and that cross the border while performing their duties or for the purpose of performing their duties;

Persons who must cross the border regularly to go to their normal place of employment, including critical infrastructure workers (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing), provided they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada; and

Technicians specified by manufacturer, or the manufacturer warranty, as required to maintain or repair equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing).

Ultimately, the federal exemption is determined by the officer at the port of entry (CBSA and PHAC), but having a letter of interpretation is meant to be a helpful tool in that assessment.

Provincial exemption to mandatory quarantine (14 day isolation period):

Travellers seeking an exemption must also contact the provincial authority for approval, since the isolation requirement is both federal and provincial jurisdiction.

Provincial rules vary but generally speaking, to request named individuals and/or classes of persons be exempt from the a provincial order, information and plans must be submitted as specified by the provincial medical authority. The information provided will be used to determine if the specified individuals and/or classes of persons satisfy the requirements for an exemption to the provincial order.

An exemption provided by a province will be conditional and will be limited to allowing the person(s) identified in the exemption the ability, within the first 14 days upon entering the province, to travel to and from their accommodation or residence to the work locations where they are performing their essential service work related duties. Where an exempted person during that 14 day period has any symptoms or is confirmed to have COVID-19, the person will be required to quarantine and cease performing their work related duties in accordance with the requirements set out in the provincial order. This type of exemption will not permit the individual to attend recreational activities, formal events or social gatherings until the 14 day period has expired.

More information and the links to the various provincial authorities can be found here.

Anecdotally we have heard about a lot of inconsistency and confusion at ports of entry. Given this, we are advising the Canadian employers of US-citizens to seek both provincial and federal approvals in advance of travel and provide information to both authorities that includes, at minimum:

Point of contact with Canadian entity
Location of worksite(s)
Names of employees or contractors or class of essential service (name, address, contact and phone number while in Canada)
Arrival and departure dates
Rationale for classifying as essential service workers
Corporate Covid-19 plan describing precautions to keep workers safe
Accommodation plan (i.e. at hotel or rental) to ensure travelers necessities and precautions are being met
Travel arrangements to and from Canada and while in Canada, to and from worksite

Once this process is complete, the person can book their trip and ensure they carry proof of the exemptions and all supporting documents to provide to CBSA and PHAC at the airport or land border crossing.

So far, we have received favorable responses from federal and provincial authorities for requests we have made and it seems to make life easier for CBSA if the traveler can provide these documents, which shows, among other things, that they and their employer have turned their minds to where they fall under the exemptions and how public health will not be put at risk if the traveller is not required to quarantine.

To be sure, this two-step approach is a little more red tape than anyone wants to have to deal with. But when Canadian critical infrastructure is at stake, it seems like a reasonable balance between ensuring Canada remains safe and, as much as possible, minimizing the disruptions on products and services that the public depends on.

For more information or to book a consultation on this or any travel-related issue, please contact us.