March 26, 2020

McLennan Ross Update for Thursday

By McLennan Ross Labour and Employment Team

What we are seeing 
  • It appears that the Canadian Government will be announcing financial support for the oil and gas sector this week. It is unclear what the support will entail and if it will be limited to loan interest relief and loan guarantees or will be something more substantive. 
  • The Government of Alberta has set up a website to provide information regarding its financial support for employees experiencing a loss of income resulting from self-isolation due to COVID-19. Click here. In order to be eligible, an applicant must have experienced total or significant loss of income and is not receiving compensation from any other source because the employee:
      • has been diagnosed with COVID-19;
      • has been directed by health authorities (Health Link 811) to self-isolate; or
      • is the sole caregiver of a dependent who is in self-isolation.
    • Those not eligible for the program include those employees who:
      • were not working immediately before being advised to self-isolate;
      • can work from home;
      • are not experiencing a significant loss of income as a result of self-isolation;
      • are currently collecting other forms of income support or employer benefits while self-isolated, such as: workplace sick leave benefits or federal Employment Insurance (EI) benefits;
      • are staying home to care for a dependent who is home for a reason other than self-isolation; or
      • reside outside of Alberta.
    • In the application questionnaire, “significant” loss of income is defined as more than 50%.

What we are hearing 
  • The Government of Alberta also announced that it would begin enforcing the Public Health Order due to non-compliance. Fines for violating an order can now cost as much as $1,000 per offence while courts will also be able to levy fines of up to $100,000 for a first offence and up to $500,000 for a subsequent offence for “more serious violations.” It appears that the Government is focused on individuals who are not following the Order by congregating in public places such as parks and not on businesses, either generally or those in the service industry that are subject to the prohibition from operating (such as bars and nightclubs) or are limited to 50% capacity or a maximum of 50 people.

What we are saying 
  • We are being asked regularly what an employer is to do with accumulated but unused vacation pay when temporarily laying off an employee under sections 62 - 64 of the Employment Standards Code. As stated earlier in our FAQ for Employers, Sections 62-64 of the Employment Standards Code permit employers to temporarily lay off employees. If an employee is laid off for 60 days in a 120-day period, the employee will be deemed terminated, and termination pay will be owing under the Employment Standards Code. Sections 62–64 do not require that the employee’s accumulated and unused vacation pay must be immediately paid to the employee in such a layoff situation. Section 38 of the Code allows an employer to require an employee to take vacation at a certain time provided the employer provides at least 2 weeks’ advance notice of such a direction; however, that does not apply while an employee is laid off. A consideration for the employee is that the receipt of vacation pay will likely affect the employee’s application for Employment Insurance benefits in that the commencement of the employee’s layoff period may be delayed by the value of the vacation time paid to the employee. Some employees may prefer to take the vacation pay up front (at 100% of normal wages) rather than Employment Insurance at a reduced rate, while other may prefer to continue holding the vacation pay so that it can be taken at a later date, such as when the employee returns to work or at the time of termination, if the employee is not recalled. An employer’s expected future solvency may also be a consideration for the employee. Although it is not necessary, we generally recommend providing the option to employees and allowing them to make the determination regarding the timing of receipt of the unused vacation pay.

No comments:

Post a Comment