McLennan Ross Update for Monday

By McLennan Ross Labour and Employment Team

What we are seeing

• The Federal Government has issued details to business owners on the temporary wage subsidy, a three-month measure that will allow eligible employers to reduce the amount of payroll deductions required to be remitted to the CRA. The subsidy is equal to 10% of the remuneration paid to employees between March 18, 2020, and June 20, 2020, up to $1,375 per employee and to a maximum of $25,000 total per employer. Eligible business are non-profit organizations, registered charities and Canadian-controlled private corporations with less than $15 million in taxable capital employed in Canada. See the Government’s explanation of the program here.

What we are hearing

• The Alberta Privacy Commissioner has put out a bulletin confirming that compliance with the privacy legislation during the pandemic is still required by employers, although what constitutes reasonable safeguards of personal information may be different than in normal circumstances. Click here for the bulletin.

• With respect to disclosure of an employee’s name who has tested positive for COVID-19, we recommend that employers not widely disclose the identity of that person unless required to ensure a safe workplace, which will differ depending upon the situation. Identifying should be the last resort and that all efforts should be made to protect the individual’s identity. 
• An employer may have to disclose the name to other employees who worked in close proximity to the person who tested positive or who may have been in areas where the employee was in order to determine whether those employees are at risk. 
• If there are others in the workplace who would not have encountered that individual, then no need to disclose to those employees arises. For example, if someone on a different floor of a large organization tested positive, there may be no need to disclose the specific identity to the whole organization – an inquiry can be made regarding whether employees have been to the floor where the employee worked and determine risk without identifying the individual. 
• There may be other workplaces where interaction is so commonplace that the employer will have no choice but to identify. 
• If the identify of a person who tested positive for the virus is disclosed, anyone receiving that information must be advised to keep the identity confidential. 

What we are saying

• We were contacted by many employers over the weekend for our comments on the article written by Howard Levitt regarding temporary layoffs. Mr. Levitt’s article, although a bit sensationalist at times, is not inconsistent with the advice we have given employers to date, just written from a different perspective:  
• Employer’s do have the obligation to provide a safe workplace for its employees and may be held responsible if they do not take appropriate steps to safeguard its staff, but it is a bit extreme to state that employers are “exposed to potential massive litigation”. Again, to protect against such claims, we recommend following our Pandemic Planning Checklist found here.
• If the employee consents to the layoff, accepting that the employer is doing its best and does wish to maintain the employment relationship, it is unlikely that the employee will claim constructive dismissal. Moreover, the employee does run the risk, as Mr. Levitt alludes to, that a court finds these circumstances so novel that, in these discrete circumstances when layoffs are due to factors beyond any employer’s control, it is an implied part of any employment relationship that an employer can rely upon the temporary layoff provisions found in employment standards legislation to get through the crisis. See question and answer no. 3 on the FAQ’s we posted on March 16 here.
• Absent a termination clause in the employee’s employment agreement, an employee’s common law notice entitlement does fall somewhere between the statutory minimum and the accepted maximum (except in the most extreme of circumstances) of 24 months, but it is generally only the employees with exceptionally long tenure and who are quite old who would have a viable claim for 24 months’ notice. The overwhelming majority of employees would not be able to credibly claim a common law notice entitlement of 24 months’ or anything close to it.
• Finally, and as alluded to in the article, if the temporary layoff is indeed temporary and the employee is offered his or her job back, the employee would be expected in law to accept the recall, reducing his or her damages claim to the amount not paid to the employee during the layoff. If the employee applied for and received Employment Insurance benefits, he or she would have to repay those benefits out of any damages claim.