April 6, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

What we are seeing

  • The Government of Alberta announced the execution of a new Ministerial Order temporarily altering certain provisions of the Employment Standards Code and the Employment Standards Regulation. These changes will be a welcome relief to employers and to employees struggling with childcare needs. McLennan Ross LLP has released a comprehensive e-Alert on this Ministerial Order here. The following is a more high-level summary of the temporary alterations:
    • A new unpaid leave of absence has been created for employees who need time off from work because of childcare responsibilities, protecting employees from termination and layoff while on this leave unless the employer has been forced to suspend or discontinue part or all of its operations;
    • The initial period of a temporary layoff permitted before termination is deemed to occur has been increased from 60 days of layoff within any 120-day period to 120 days. The layoff period can still be extended with the consent of the employee;
    • The onerous group termination provisions for any group termination in excess of 50 employees (that significantly enhance the notice to be provided to the affected employees, any applicable union, and the Minister of Labour) have been suspended;
    • The previously required 24-hour written advance notice of changes to schedules has been suspended, allowing employers to better respond to needs to implement social distancing in the workplace, respond to fluctuations in work demands, and fill gaps when scheduled employees cannot attend work on short notice;
    • The 2-week written notice for temporary changes to averaging agreements will not apply; and
    • Variance applications for permits to allow for the relaxation of certain employment standards for individual workplaces due to COVID-19 will be simplified to make such permits easier to obtain.
  • On April 3, 2020, the Government of Ontario revised its list of essential businesses. The updated list directed additional businesses to close and directed specified businesses to provide services by alternate methods. Only critical construction projects were permitted to continue to operate, including industrial projects such as refineries and petrochemical plants and infrastructure projects such as new hospitals, roads, and bridges. New starts in residential projects will stop, although residential construction that is near completion will be permitted to continue. All businesses not on the updated list were required to close as of 11:59 p.m. Saturday, April 4, 2020.
  • Alberta has previously not gone as far as Ontario in closing workplaces, perhaps due the significantly lower number of total cases and Alberta’s shallower curve, so we do not believe a similar step will be taken here unless there is a change in the infection rate. We will continue to monitor whether Alberta is considering any additional or modified workplace restrictions. 

What we are hearing
  • While providing an update on Sunday April 5, 2020, Prime Minister Trudeau indicated that the government is still working on solutions for part-time employees, temporary foreign workers, and students. Trudeau specifically acknowledged the difficulty students will face finding employment, whether permanently or for the summer. We will continue to provide updates on this additional assistance once disclosed.

What we are saying
  • The Workers Compensation Board issued fact sheets to assist employees and employers in determining entitled to compensation for employees from the Board arising from COVID-19;
  • The work sheet provides some generic guidance:
    • In most instances, COVID-19 cases will not be covered by WCB;
    • The worker must show that he or she was at a greater risk than the general public of contracting the virus;
    • Coverage will be afforded where the nature of the employment involves sufficient exposure to the source of infection and the nature of employment either is the cause of the condition or created a greater risk of exposure for the worker.
  • McLennan Ross LLP reported on the WCB’s positions in respect of COVID-19 here.
  • A clear gap in the fact sheets, and indeed in the interpretation of coverage we have seen to date from the WCB, is when an employee in a high-risk profession is exposed to COVD-19 and is directed by the employer to self-isolate for 14 days before returning to work. To date, the WCB appears to take the position that unless the worker ultimately contracts COVID-19, there is no coverage for the self-isolation period. This may result in an expectation of the employee that the employer provide paid leave for the mandated self-isolation period.
  • For more information in respect of workers’ compensation issues, contact our Labour and Employment team at covid19@mross.com.

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