April 16, 2020

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.

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