McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team

What we are seeing

• Statistics Canada released data through its Canadian Survey on Business Conditions regarding the impact of COVID-19 on businesses in Canada in March, 2020, link here. According to this survey:
• Nearly one-third (32.3%) of businesses who responded to the survey reported that their revenues from the first quarter of 2020 were down by 40% or more from the same quarter a year earlier. Another 21.2% of businesses reported their revenues had decreased by 20% to 40% over the same period.
• Just under two-thirds (64.8%) of businesses reported being highly affected by lower demand for their products or services, while nearly half (48.5%) of businesses reported being highly affected by the need to cancel services they offered.
• Almost two-fifths (38.1%) of businesses reduced staff hours or shifts, while two-fifths (40.5%) of businesses reported that they laid off staff. Nearly one-fifth (18.3%) of all businesses laid off 80% or more of their workforce.
• The percentage by sector of businesses which laid off 80% or more of their workforce was stated as follows:
• Agriculture, forestry, fishing and hunting - 23.6%
• Mining, quarrying, and oil and gas extraction - 26.9%
• Utilities - 26.7%
• Construction - 41.6%
• Manufacturing - 29.4%
• Wholesale trade - 24.6%
• Retail trade - 51.2%
• Transportation and warehousing - 19.3%
• Information and cultural industries - 19.2%
• Finance and insurance - 12.4%
• Real estate and rental and leasing - 19.3%
• Professional, scientific and technical services - 24.6%
• Management of companies and enterprises - 21.9%
• Administrative and support, waste management and remediation services - 18.6%
• Educational services - 46.4%
• Health care and social assistance - 64.2%
• Arts, entertainment and recreation - 61.7%
• Accommodation and food services - 69%
• Other services (except public administration) - 46.3%
• Public administration - 16.6%
• With the focus on the economic impact of COVID-19 and the resulting work from home, the resources available to support mental health have not received significant attention.
• The Mental Health Commission of Canada has published various resources from the Government of Canada to provide support for Canadians suffering from mental health concerns. A link to resources is here. 
• One resource is the Wellness Together Canada portal, which provides tools and resources to help Canadians concerned about their mental well-being. These tools include modules for addressing low mood, worry, substance use, social isolation and relationship issues.

What we are hearing

• The Provincial Government confirmed our previous advice that it was set to introduce a plan later this week to re-open the Alberta economy in stages starting in May. Although still in draft format, Premier Kenney confirmed that work was ongoing and that the plan once introduced would be closely coordinated with the plans already announced by Saskatchewan and the one to be announced by British Columbia in the near future due to inter-provincial commerce, trade, and travel.
• Ontario and Quebec also announced the framework for the gradual reopening of their economies.
• The plan for Ontario is to reopen Ontario businesses and public spaces gradually. This will be based on the advice of the Chief Medical Officer of Health. Each stage will last for approximately two-to-four-week periods to allow for close monitoring of any impacts or potential resurgence of COVID-19 cases.
• Quebec’s plan includes set dates for phased reopening, starting on May 4, 2020 and then continuing on May 11 and May 25. The Quebec plan has been described as aggressive in light of the fact that Quebec is still experiencing the largest number of new COVID-19 cases per day in Canada.
• According to the Government of Canada statistics, Ontario and Quebec represent more than 80% of all confirmed cases across the country, with British Columbia and Alberta accounting for 14% of confirmed cases. 
• From reviews of the Alberta economy, it has been suggested that less of the economy has been shut down than anticipated. That is good news, though many businesses have been shut down (e.g., retail; personal services; transportation; hospitality) and most businesses have experienced reductions in revenue (as confirmed by the Canadian business data reported above).

What we are saying

• Don McGarvey of McLennan Ross LLP was interviewed by Postmedia about the impact of the current court closures on the conduct of litigation once the state of emergency is lifted.
• Don highlighted what we have noted in the past, specifically that Alberta’s judicial resources were already stretched thin prior to the pandemic and that demand is going to be exponentially worse once the courts reopen, as the court will be faced with the pre-existing caseload which has sat largely dormant for many weeks, plus an expected avalanche of new cases arising from events caused by COVID-19.
• Don also predicts that there will be a new cottage industry of COVID-related class action lawsuits brought by firms on behalf of a large number of claimants, which claimants could be employees who were either terminated or laid off as a group or who attended at work during the state of emergency and contracted or were exposed to COVID-19 despite the best efforts of the employer.  

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

What we are seeing

• On April 24 2020, the Government of Canada announced the Canada Emergency Commercial Rent Assistance (CECRA) program after reaching an agreement with all provinces and territories.  
• The CECRA provides forgivable loans to qualifying commercial property owners to cover 50% of monthly rent payments owed by eligible small business tenants during April, May, and June, 2020. It is expected to be operations by mid-May, 2020.
• The loans will only be provided if the property owners agree to reduce the eligible small business tenant's rent by at least 75% under a rent forgiveness agreement and warrant not to evict the tenant while the agreement is in place.
• The tenant is required to cover the remaining 25% of the rent for the three months.
• Eligible small business tenants have been described as businesses paying less than $50,000 per month in rent and who have temporarily ceased operations or have experienced at least a 70% drop in pre-COVID revenues.
• This support will also be available to non-profit and charitable organizations.

 What we are hearing

• The Provincial Court of Alberta recently hosted a webinar that provided some insight into how that Court will try to restart operations. The Court recognized its biggest impediment to the resumption of full Court services is the need for restricted access and the existing technological gaps in effectively providing services to the public and profession.
• The Court is developing a plan that continues to evolve, but stressed this was an opportunity for the Court to reimagine how it delivers services to Albertans and how it conducts business on a day-to-day basis.
• This plan recognizes that resumption of "normal" operations will not occur soon and the best-case scenario may be a "grocery store model" where the Court is open but there is a controlled separation implemented between people to ensure safety for everyone involved.
• The Civil Division has been trying to expand access to remote services like WebEx and telephone in order for the matters currently being heard to be expanded from urgent/emergency to non-urgent matters; however, the Court currently faces a lack of technological resources as well as a shortage of court clerks, which are required for any such hearings.
• In rescheduling the adjourned matters across all Divisions, the Court said nothing is off the table. They are considering extending hours; however, this would be subject to resource constraints. The Court encourages litigation parties to consider mediation and to engage in meaningful Pre-Trial Conferences and Case Management hearings.
• The Court mentioned possibly moving all $10,000 or less matters to an administrative body in the future. This would assist the Court when it moves to hearing matters up to $100,000 by redirecting some of the backlog.
• We expect that the Court of Queen's Bench is developing a very similar plan, but is also facing gaps in its existing technology and staff.

 What we are saying

• New Brunswick, whose number of active COVID-19 totaled 118, with 11 active cases and no fatalities, has announced its plan to reopen the New Brunswick economy.
• Although a guidance documents is being developed, the plan includes the immediate allowance of increased but still limited contact and events, such as:
• Households are permitted to spend time with one other household, if both households agree;
• Golf courses and driving ranges are permitted to open if physical distancing and safety measures are in place;
• The ban on recreational fishing and hunting is lifted;
• Parks and beaches are reopened, but users still have to follow physical distancing measures;
• Co-workers or neighbours can carpool if physical distancing measures are maintained by transporting the passenger in the backseat;
• Post-secondary students are permitted to access campus if required to fulfill course requirements; and
• Religious organizations are allowed to hold outdoor services if parishioners stay in their vehicles 2 metres apart.
• New Brunswick also has travel restrictions in place. All travelers entering New Brunswick are still required to self-isolate for 14 days. This restriction does not apply to essential workers, such as workers in the trade and transportation sector as well as healthy people who must cross the provincial border to attend work.
• Based on the unique situation in New Brunswick, we still expect the plan to be introduced by the Alberta Government to be more consistent with the plans already announced by Saskatchewan and British Columbia, especially with the necessity of interprovincial commerce, trade, and travel.

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

What we are seeing

• On April 22, 2020, Prime Minister Trudeau announced new financial support programs for students who, to date, had been largely ignored by the Government. Details of the programs include:
• Introduction of the Canada Emergency Student Benefit (CESB) for new, current, and recently graduated post-secondary students not eligible for the CERB. Eligible students can apply to receive $1,250 a month for the traditional summer break from May to the end of August. Students with permanent disabilities and those with dependents can receive an additional $500 per month.
• An increase in the value of Canada Student Grants.
• An increase to the Canada Student Loans limit from $210 to $350 per week of study.
• Expansion of the Student Work Placement Program to promote the creation of more paid work placements in healthcare, food, agri-food, retail and e-commerce.
• $291 million is being allocated to support student researchers and post-doctoral fellows through federal granting councils.

 What we are hearing

• On April 9, 2020, the Minister of Service Alberta signed Ministerial Order SA:009/2020 which had a significant impact upon public bodies attempting to deal with Freedom of Information and Protection of Privacy Act (FOIP) access requests. The Order:
• Extends the timeline for a public body to respond to an access request from 30 days to 90 days (s.11);
• Allows a public body to extend that 90-day timeline by an additional 60 days (or longer with the permission of the Privacy Commissioner) if the COVID-19 pandemic unreasonably interferes with the operations of the public body (s.14);
• Extends the 15-day time limit during which a public body can transfer an access request to another public body to 45 days (s.15); and
• Allows a public body to extend the 30-day timeline for deciding whether or not to provide access to a third party record to 60 days (or longer with the permission of the Privacy Commissioner) for operational reasons related to the pandemic (s.31).
• The Order applies to all FOIP access requests received on or after April 9, 2020, and all access requests which were underway on April 9, 2020, regardless of whether timelines had already been extended under FOIP. It will remain in effect until 60 days after the public health emergency is declared to be at an end, or until terminated by the Minister or Cabinet.
• Despite the significance of the Order, very little has been said about it and surprisingly, it does not seem to be mentioned on the OPIC website. This is a very important order for any public body struggling to deal with the pandemic and its ongoing obligations under FOIP.

 What we are saying

• Saskatchewan announced a five-phase plan to re-open Saskatchewan's economy beginning on May 4, 2020.
• The phases will be implemented via public health order with timing dictated by evidence of transmission:
• Phase One: Re-opening previously restricted medical services and the opening of golf courses, parks and campgrounds;
• Phase Two: Re-opening retail and select personal care services;
• Phase Three: Re-opening restaurants and food services, gyms and fitness centres, licensed establishments, childcare facilities and any remining personal care services as well as increasing the size of public and private gatherings to 15 people;
• Phase Four: Re-opening indoor and outdoor recreation facilities and increasing the size of public and private gatherings to 30 people; and
• Phase Five: Consider lifting long-term restrictions.
• We expect that the Alberta Government will soon be introducing a similar plan which will also be dictated by medical evidence. In light of the connection between Alberta and Saskatchewan commerce, it would be surprising if the Alberta strategy was inconsistent with Saskatchewan's plan. At the very least, Alberta employers should take note of where they fall in the Saskatchewan phases as that could be a good indication of where they might be placed if Alberta follows a similar course.  

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team

What we are seeing

• The Government of Canada has posted a summary of key information for employers regarding the Canada Emergency Wage Subsidy (CEWS). This summary assists in determining who is an eligible employer, how to determine if there has been sufficient reduction in eligible revenue of a business to qualify for the subsidy and how to determine eligible revenue. The summary can be found here.
• The Government of Canada has also provided information regarding the changes to the Canada Summer Jobs program, including an increase in the percentage of wages to be reimbursed, the ability to offer part-time placements and an extension of the eligible employment period. This additional information can be found here. 

 What we are hearing

• Employers are looking for guidance on how to operate and still be in compliance with Occupational Health and Safety rules and restrictions. Alberta Occupational Health and Safety has provided some limited general guidance to assist employers. A more fulsome source of information may be found at the Canadian Centre for Occupational Health and Safety website here. CCOHS has recently published a number of tip sheets by industry which employers may find more useful than the generic provincial guidance.

 What we are saying

• There was a recent article in The Globe and Mail regarding what an employee can do if an employer is perceived as using COVID-19 as an excuse to get rid of that employee. The responses provided by the two non-management side lawyers were in the context of a layoff as opposed to an immediate termination and were generally unobjectionable. One of the lawyers rightly acknowledged that absent a reason that would be considered discrimination, an employer does not need to provide a reason to terminate an employee on a without cause basis. The other suggested that a temporary layoff absent a legitimate business need due to the pandemic is likely a constructive dismissal, which is also arguably correct in that factual vacuum. It is perfectly legitimate for an employer to terminate an employee based on COVID-19. 

• Our frequent recommendation to employers is to not advise employees of the reason for a without cause termination, other than in general terms. The current state of emergency does not dictate a deviation from this general practice, although it is usually easier for employees to understand if they are being terminated for economic reasons, as opposed to specific concerns or problems with their performance. For a temporary layoff, the Alberta Employment Standards Code does not require economic justification, or indeed any justification, for an employer to rely upon the Code’s temporary layoff provisions. The Code only states that the employer can issue a temporary layoff notice to maintain an employment relationship with the employee who is being directed not to come to work. Note that we have warned previously that the issuance of a temporary layoff notice – whether due to COVID-19 or under any other circumstance - could be considered constructive dismissal despite being permissible under the Code, depending on the circumstances. Read the full article here.
• A point missed by the two lawyers in The Globe article is that practically, it would likely be against the best interests of the employee to push the point and argue that the termination or layoff was not due to COVID-19. Some of the emergency relief supplied by the Government of Canada for terminated or laid off employees, such as the Canada Emergency Response Benefit, is expressly stated to be available only to “eligible workers who have lost their income due to COVID-19.”

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

What we are seeing

• As we summarized on April 17, 2020, link here, the Government of Canada finally announced financial support for the energy industry. This support package is largely limited to providing $1.7 billion to fund the clean-up of orphan and inactive wells and $750 million for an emission reduction fund to reduce methane emissions and create and maintain jobs in pollution reduction.
• Reactions have been mixed, with the general consensus being that while the projects funded are worthwhile, the net result provides little to no assistance for energy companies with current operations. Currently one of the most dire issues facing energy companies is a restricted access to capital. There has been discussion that in addition to what has been announced to date, the Government should also provide additional energy-sector specific loans, lines of credit or loan guarantees to help with the immediate cash shortfall being experienced by energy companies due to the crash of energy prices. The muted government reaction appears out of step with support for other industries. Of concern as well is the misinformation about energy being a subsidized industry, which is not the case, as evidenced by the billions of dollars of provincial and federal government revenue associated with the energy industry.

What we are hearing

• The Government of Ontario issued a new Ministerial Order on April 17, 2020, that permitted municipalities to reassign and reconfigure its workforce providing critical municipal services to respond to COVID-19 demands, link here. These new powers are similar to the ones previously enacted for healthcare workers that we summarized here. In general terms, the Order:
• Permits emergency redeployment of staff, including permitting non-bargaining unit employees or contractors to perform bargaining unit work on 24 hours’ notice to the bargaining agent;  
• Allows for the increased collection of personal information from staff, contractors, and volunteers; 
• Cancels or postpones non-critical municipal services; and
• Suspends any grievance process with respect to any matter referred to in the Order. 
• We have not heard any suggestion that the Government of Alberta is contemplating similar action.
• Despite information to the contrary from Alberta Health Services and Dr. Hinshaw, UFCW Local 401 continues to capitalize upon employee fear to pressure employers with demands to close operations, increase pay and benefits, and limit access to grocery stores. UFCW Local 401 is encouraging members to refuse to work if they feel subjectively unsafe. While OHS legislation does provide the right to refuse unsafe work, there is concern that this right may be abused for reasons unrelated to safety.
• UFCW Local 401 was calling for a prohibition against more than one person in a family entering a grocery store at a time and forbidding a family from shopping at a grocery store more than once a week. There are numerous problems with such suggestions. For instance, limiting access to grocery stores could promote hoarding. Also, limiting family members would pose hardship to families who are unable to comply (e.g., a single parent who has no alternative than bringing children to a grocery store). One wonders whether the purpose of these suggestions from UFCW Local 401 are more directed at extracting pay and benefits from employers than legitimate concerns over worker safety.
• There have been no developments with respect to the Government of Alberta providing support for golf clubs by allowing them to open on a limited basis. As BC is allowing golf courses to operate, there will be increasing pressure for Alberta to do the same as the weather improves.

What we are saying

• With the formal roll-out of the Canada Emergency Wage Subsidy (CEWS), which provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020, some employers are looking to recall workers who were temporarily laid off. The Employment Standards Code requires an employer provide 7 days’ notice to the employee of the return to work date as part of the notice of recall. According to the Code, if the employee does not return, the employer can decide to terminate employment without notice.
• Employees, like employers, have had to make decisions quickly during the state of emergency and there may be legitimate logistical or financial reasons for an employee to delay his or her return to employment. Considering the negative impact of a resignation on an employee’s ability to receive Employment Insurance benefits, we urge caution to employers in attempting to rely on the strict timelines in the legislation if an employee requests additional time before returning to his or her employment. The more notice that can be provided to employees, the better.
• Many employers are uncertain how to handle the employment of employees prior to the CEWS application process being implemented and applications being approved. Employers need to determine who they are prepared to employ and seek the wage subsidy for them. Employees cannot be without remuneration for more than 14 days in a 4-week qualifying period. Employment and compensation should not be provided retroactively only after the wage subsidy has been approved.
• Employers need to be prepared to address refusals to work based on safety concerns. Employers need to assess hazards promptly and reasonably and engage Joint Workplace Health and Safety Committees. Employees are entitled to pay while a refusal to work is assessed, and employers are entitled to re-assign employees during the process. We may be seeing more of these issues.

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

What we are seeing

• Prime Minister Trudeau confirmed that the government was expanding eligibility requirements for businesses to qualify for the Canada Emergency Business Account (CEBA). Previously, eligible businesses had to have a payroll between $50,000 and $1,000,000 annually. Following the expansion, businesses with a payroll between $20,000 and $1,500,000 are now eligible. The CEBA is a $40,000 interest-free, government-backed loan to help cover operating costs for eligible businesses during a period where revenues have been temporarily reduced.   
• The $40,000 CEBA loan is interest-free, with a quarter of the loan being eligible for complete forgiveness if $30,000 is fully repaid on or before December 31, 2022. If the loan is not repaid by December 31, 2022, it can be converted into a 3-year term loan with interest starting to accrue.
• The Government plans to introduce the Canada Emergency Commercial Rent Assistance Program, which will provide loans, including forgivable loans, to commercial property owners who will be required in turn to provide small businesses with rent reductions for April, May and June. The assistance is being rolled out in collaboration with the provinces and territories as rent policy is largely the responsibility of provinces and municipalities.
• After a long wait, the Government of Canada today announced the following support for the energy industry:
• $1.7 billion to clean up orphan and inactive wells in Alberta, Saskatchewan, and BC. This is expected to support jobs, including maintaining 5,200 jobs in Alberta, and help landowners affected by abandoned wells.
• $750 million for an emission reduction fund to reduce methane emissions and create and maintain jobs in pollution reduction:
• $75 million to help offshore industry.
• repayable contributions to firms to reduce waste and pollution and protect jobs.
• fixing issues such as methane leaks.
• Re cash crunch for energy companies.
• an estimated 10,000 jobs will be maintained.
• BDC/EDC to expand credit support for at-risk medium sized companies.
• The following additional support for small businesses was also announced:
• $962 million to regional development agencies and the community futures network, to help smaller employers, especially in rural areas and businesses that do not have a relationship with traditional financial institutions
• $270 million to support innovators and early stage firms who do not qualify for the CEWS.
• $500 million is being provided to Heritage Canada for wage support and funding for liquidity problems.

What we are hearing

• After a period of leveling off, the number of COVID-19 cases is again trending up based on the most current statistics provided by Alberta’s Chief Medical Officer , who believes that we have not yet seen the peak of COVID-19 in Alberta. However, the number of cases, hospitalizations, and deaths from COVID-19 are all below the expected levels based on the provincial models.
• Dr. Hinshaw confirmed again the safety of working in meat packing plants and the steps being taken to maintain that safety.
• Dr. Hinshaw reminded Albertans that golf courses and driving ranges are not an essential service, though many petitioners hope that status will be changed soon.
• Alberta Health Services has issued 15 enforcement orders throughout the province related to COVID-19 concerns referred to as “a public health nuisance.”  
• Despite the fact that all individuals within a business found to be in violation of public health, including owners, workers, volunteers, and patrons, are subject to a $1,000 penalty, some businesses have been trying to continue to generate revenue in order to survive the state of emergency.  Some have estimated that the restaurant industry has already lost 95,000 jobs since the start of the pandemic, with Restaurants Canada opining that it believes 10% of Alberta eateries have already permanently closed and another 18% of its Alberta members could be lost if conditions don’t improve by early May. It is not clear if these estimates take into account the additional assistance for small businesses recently announced by the Federal Government, though clearly there will be businesses lost as a result of current restrictions.

What we are hearing

• Some employers were forced to implement a wage reduction once the statement of emergency was implemented as their revenue drop was immediate. These employers may now be seeking assistance through the Canada Emergency Wage Subsidy (CEWS), which provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020 https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html
• We have been asked if the employer, when applying for the CEWS, must return employees to their pre-crisis wage. The answer appears to be yes. According to the CEWS information page:
• The subsidy is up to 100% of the first 75% of pre-crisis wages or salaries of existing employees. 
• Employers are expected where possible to maintain existing employees’ pre-crisis employment earnings.
• The pre-crisis remuneration for a given employee is based on the average weekly remuneration paid between January 1 and March 15 inclusive, excluding any 7-day periods in respect of which the employee did not receive remuneration.
• The intention of the CEWS continues to be that employees will receive 100% of their pre-crisis earnings, with the employer paying the remaining 25%, but this employer top-up is still described as an expectation, but not a program requirement and something an employer is only required to try to do on a best efforts basis. We have been provided with no guidance as to how the government will evaluate whether employers indeed made their best efforts to pay the 25% top-up amount.

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing

• Prime Minister Trudeau announced further support for employers and employees yesterday, including:
• The Federal Government will work with the provinces and territories to top-up pay of essential workers, including those in long-term care facilities, who are currently earning less than $2,500/month;
• An immediate expansion of the Canada Emergency Response Benefit (CERB) in order to reach people who are earning some income (less than $1,000 per month), seasonal workers who are facing job shortages and those who have recently run out of Employment Insurance.  
• The Prime Minister also announced that more support for post-secondary students looking for work and businesses in need of relief from their commercial rent would be forthcoming this week.
• Alberta Health Services has been working with meat packing plants to ensure the safety of those workplaces. AHS will be opening a dedicated assessment centre at the Cargill meat packing plant in High River in the next week to help identify employees who should be self-isolated and provide reassurance to those remaining at work. This step supplements numerous other precautions that have been implemented by the employer. These meat packing facilities are important to the food supply and are important sources of income to employees. Fortunately, there is no risk to the public of getting COVID-19 from food production.

What we are hearing

• British Columbia updated its interpretation guidebook for its Employment Standards Act. As with the Alberta Employment Standards Code, the B.C. legislation provides that all employees terminated without cause are to receive statutory notice of termination, or pay in lieu of that notice, to a maximum of 8 weeks’ notice depending on the employee’s length of service. The B.C. Act also contains the group termination notice requirements recently relaxed in Alberta, link here. The B.C. Act and the Alberta Code both contain an exemption where notice does not have to be provided where the contract has become impossible to perform due to an unforeseen event or circumstance.  
• The Government of British Columbia has posted the following update to its interpretation guidelines for the Employment Standards Act which provides an indication of when an employer can rely on the unforeseen circumstance provision when it has had to close the doors and terminate its employees with immediate effect due to the pandemic:
• COVID-19:
• If a business closure or staffing reduction is directly related to COVID-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.
• This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to COVID-19 or if the employee's work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.
• Although not applicable to the Alberta Code, this interpretation is consistent with the position we have taken regarding when employers in Alberta can rely upon the analogous provision in our legislation. Circumstances may vary.

What we are saying

• Once again, the further modifications to the CERB will cause employers to rethink how to manage short-term reductions in their workforce. Previously, due to the requirement that employees receive no income whatsoever, an employer with reduced but ongoing operations was finding that its employees were refusing reduced or infrequent hours as earning any income would disqualify the employee from the CERB.  
• Although the amount of the CERB will likely be reduced by some percentage to reflect the fact that the employee is earning income from other sources, employers hopefully will be better able to encourage employees to continue to work on a reduced basis as the employee will not be permitted to receive some income and supplement that with a CERB payment as well.

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team

What we are seeing

• Prime Minister Trudeau promised additional assistance to Canadians and to Canadian businesses would be announced shortly, including the following:
• Enhancement of the Canada Emergency Business Account (CEBA) by providing financial assistance with commercial rent for businesses impacted by the state of emergency;
• Investment of nearly $130M in new funding to help northern communities, with $72.6M given to the Northwest Territories, Yukon and Nunavut to boost their healthcare systems; 
• More support for students and essential service workers; 
• Wage support to long-term care workers; and
• Sector-specific funding for airlines, hospitals and energy. 

What we are hearing

• There is evolving concern about the impact of the COVID-19 virus on the food supply. The concern is not that the virus can be transmitted via food processing (as according to the Canadian Food Inspection Agency, there are no reported cases of food or food packaging being associated with the transmission of COVID-19), but for the workers in the food processing facilities.
• Most food processing companies in Canada acknowledge that changes to food processing operations are necessary and have already implemented those changes, such as health screening for employees, providing all employees with personal protection equipment, staggering shifts, increased distancing on the production line, slowing line speed and providing additional rules and sanitizing agents in break areas. These companies are confident that they can keep their employees as safe as the rest of the population yet still process the food required to keep the grocery stores stocked.
• The Government of Canada has also indicated it would provide the Canadian Food Inspection Agency with $20M to strengthen food inspections to keep Canada’s food supply chain safe.
• Demands that food processing facilities be shut down entirely appear to be both overblown and entirely unrealistic, as well as detrimental to employees seeking to work and provide for their families. The Alberta Government concurred that food processing plants need to be operational in order for the food supply system to operate and that new protocols are in place at food processing plants to keep employees safe. Alberta Health Services is working with food processors and has not generally been requiring them to shut down.

What we are saying

• As we have discussed previously, sections 62 to 64 of the Employment Standards Code permit an employer to temporarily layoff an employee or group of employees for a period of up to 120 days, or longer if renewed. The notice periods for temporary layoffs are as follows:
• 1 week if the employee has been employed for less than 2 years; 
• 2 weeks if the employee has been employed by the employer for 2 years or more; or, 
• In certain circumstances, the employer does not need to give notice of the temporary layoff if the circumstance is unforeseeable.
• Recently, we have encountered situations where employers provide the 1 or 2 weeks’ notice of a temporary layoff as required by the Code, but the employee requests that the notice period be waived so that the employee can immediately apply for government assistance, which is higher than the income the employee would have earned over the notice period.
• It is not legally permissible to contract out of the Code, and therefore an agreement to truncate the notice period may not work. One option may be to put the employee on an unpaid leave of absence for the remainder of the notice period. That way the employee’s income is reduced to $0, but the employer has still met the statutory notice requirement for the layoff. A waiver signed by the employee confirming his or her consent to be placed on the unpaid leave of absence may assist if there is ever a dispute in the future about the circumstances giving rise to the leave of absence.

McLennan Ross Update for Tuesday

By McLennan Ross Labour & Employment Team

What we are seeing

• Alberta’s Chief Medical Officer of Health announced additional measures to assist in helping track and prevent the spread of the COVID-19 virus. An expansion of testing protocols will be implemented in order to better assess who has and can transmit the virus. As a large number of infections and deaths have occurred at continuing care facilities for seniors, the Government is directing that all employees wear masks when providing direct patient care or working in patient-care areas within two meters of other people and also that all workers in continuing care facilities would only be permitted to work at one site. As the workers who work at more than one facility generally do so to make additional income, those workers will presumably be foregoing some of their earnings.

What we are hearing

• Over the Easter weekend, the Chief Public Health Officer of the Northwest Territories issued two new Public Health Orders. These are the second and third Orders issued from the Chief Public Health Officer, with the first Order, addressing travel restrictions and self-isolation, issued on March 21, 2020.
• The second Order took effect on April 10, 2020 at 12:00 PM and was directed at remote work camps in the mineral and petroleum industries, which industries were exempted from the first Public Health Order. Employers in the mineral and petroleum industries must now ensure that employees complete 14 days of social isolation prior to travelling to a work camp. Employers are also required to complete a workplace risk assessment and to ensure that an employee completes a health screening prior to permitting an employee to travel to a work camp. In addition, employers are required to implement a number of safeguards once employees are at the work camp. Employers must:
  
  • Establish social distancing protocols and ensure compliance;
  • Have only the minimum number of employees at the site which are required to maintain operations;
  • Ensure that employees complete a health screening, including a temperature check, prior to beginning each shift;
  • Ensure that any employees displaying symptoms self-isolate in a designated part of the camp and that the Chief Public Health Officer is notified;
  • Establish disinfection procedures in specific areas of the camp and display signs with respect to use and disinfection procedures; and
  • Cease any buffet-style food services.

• The third Public Health Order is directed at social gatherings, as well as the operation of certain businesses, and took effect on April 11, 2020 at 12:00 PM. This Order prohibits indoor social gatherings by individuals who do not live in the same household. Outdoor social gatherings of more than 10 people are also prohibited, but outdoor gatherings of less than 10 people are permitted, provided that individuals maintain a minimum distance of two meters from one another. This Order also formalizes a number of the Chief Public Health Officer’s recommendations with respect to the continued operation and closure of businesses:
• Businesses and facilities that are considered a high risk for the spread of COVID-19, such as gyms, theatres, and restaurants, are required to close.
• Essential businesses, including banks, gas stations, pharmacies, grocery stores, and liquor stores, are permitted to remain open, but are required to ensure distancing between customers and disinfection of surfaces. Businesses which are not high risk or essential may remain open, provided that they can comply with hygiene and distancing guidelines. 

 What we are saying

• Some counsel are taking a “pens down” approach to litigation matters and using the state of emergency as an excuse to avoid moving court actions forward. The tolling of limitation periods and court deadlines, along with the closing of the courts to any non-emergent matters, does make it difficult for parties to make progress in litigation when one party clearly benefits from the delay. Despite that difficulty, reasonable requests for cooperation to move matters forward that are ignored or rejected for no reason can still be used as evidence in court matters once the courts are reopened. Counsel and parties should therefore be cautious and keep in mind that once the pandemic is past, conduct during the state of emergency may very well become relevant when making or opposing applications.