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.