McLennan Ross Update for Friday

By McLennan Ross Labour and Employment Team

What we are seeing 

• Since the commencement of the COVID-19 pandemic, the Canadian Government has announced a number of Employment Insurance changes as well as two new programs meant to assist those who don’t qualify for EI. Those two programs were streamlined on Wednesday afternoon into a single benefit — the Canada Emergency Response Benefit (CERB). The Government’s news release, link available here, is sparse on CERB details, but it appears that the benefit will be administered as follows:
• Anyone who has made at least $5,000 in the previous 12 months or the previous tax year and who has lost their income for any reason due to COVID-19 is eligible for the CERB.
• The purpose is to ensure that no one who had income and has had that income interrupted is going to go without having access to any funds. As for what counts as income loss due to the COVID-19 pandemic, it appears to be intended to cover most situations, such as if employees have been laid off either directly or indirectly as a result of the current economic situation, if employees are sick, if a child is home from school and an employee must be home to care for them, if employees are caring for a sick family member, if employees feel they must self-isolate due to risk factors, if employees are experiencing mental-health issues as a result of the pandemic, and so on.
• People can keep their jobs and still be eligible for the CERB, but they must not be receiving payment, which indicates that the CERB cannot be supplemented by the employer. Despite that limitation, the intention appears to be that employers and employees can maintain a connection, and employees can receive the CERB for the next 4 months and then restart their employment when the economy moves back towards normalcy.
• It appears that this benefit will be in addition to existing benefits under the EI program; however, applicants cannot receive both the CERB and EI benefits at the same time.
• All those eligible for the CERB, regardless of how much they made before, will get $2,000 per month, paid bi-weekly for a period of up to 16 weeks. The eligibility period ends on October 3. The earliest people can expect to see the first benefit cheque arrive is around April 9 and the latest is around April 20.
• Canadians will be able to apply for the CERB through a Service Canada online portal at a link that will be published widely when the site goes live, as well as over the phone or in person, where available.

What we are hearing 

• The Government of Saskatchewan has made a determination of businesses that are essential and non-essential for the purposes of public operations. The list of Critical Public Services and Allowable Business Services is very broad (e.g., it includes all employees in a variety of fields, such as all production, processing and supply chains of the energy and oil and gas sectors). Non-essential businesses are not prevented from operating, but they are required to close public operations as of March 26 (they cannot offer “public-facing services”).
• Here is a link to the list of Critical Public Services and Allowable Business Services in Saskatchewan.
• The Government of Saskatchewan also announced further limitations on the size of public and private gatherings to a maximum of 10 people in one room. Exceptions are provided where two-metre distancing between people can be maintained, such as: workplaces and meeting settings where people are distributed into multiple rooms or buildings; and retail locations deemed essential.

What we are saying 

• Many employers have had to issue layoff notices to a large number of employees in the past two weeks. If the employer does not recall the employees and proceeds to termination, this gives rise to a group termination notice requirement set out in section 137 of the Employment Standards Code that states that if an employer is intending to terminate the employment of 50 or more employees at a single location within a 4-week period, the employer must give the Minister of Labour and the affected employees (and any union) the following amount of written notice according to the number of employees affected:
• 8 weeks - 50 or more employees but less than 100
• 12 weeks - 100 or more employees but less than 300
• 16 weeks - 300 or more employees
• Employers are rightfully concerned about these notice requirements and what financial liability they may create. We are waiting to see if there will be any relaxation of this requirement by the Government of Alberta. Absent such relaxation, there may be applicable exemptions under the Code and the Employment Standards Regulation which can potentially provide relief for employers from this notice requirement.