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.