By McLennan Ross Labour & Employment Team
What we are seeing
- Premier Kenney announced on May 28, 2020 that Order in Council 080/2020 which declared the state of public health emergency under the Public Health Act will not be renewed.
- Section 52.1(2) of the Public Health Act allowed the Government, when a declaration of a state of public health emergency had been made, to suspend or modify the application or operation of all or part of an enactment if such actions were determined to be in the public's interest. The Government of Alberta issued over 40 Ministerial Orders to address issues arising from the state of emergency in such areas as privacy, child care programs, community and social services, employment, health, environment, landlord and tenants, transportation and legal proceedings. A listing of all of the Ministerial Orders can be found here.
- Section 52.1(2) also states that unless terminated earlier by the terms of the Ministerial Order itself or by further Order, the Ministerial Orders all expire 60 days following the end of the state of public health emergency. For employers, this means that the temporary changes to the Employment Standards Code and Employment Standards Regulation, which we summarized here, will expire as well, meaning:
- Elimination of the unpaid leave of absence for employees who need time off from work because they are caring for children affected by school and daycare closures or self-isolated family members;
- The shortening of the permitted initial period for a temporary layoff back to 60 days from 120 days;
- Group termination notice requirements will apply again; and
- The 24-hour notice requirement for changes to schedules will again be in place.
- It is possible that some of these changes will be re-implemented by way of formal amendments to the Employment Standards Code and Employment Standards Regulation, which is unlikely to happen prior to the expiry of the Ministerial Order issued under the Public Health Act. It is expected that changes to the Employment Standards Code and Labour Relations Code will be introduced in a June session of the Legislature.
- On Wednesday in the Legislature, the Premier also noted the following statistics in describing the need to dismantle the economic lockdown:
- the average age of death in Alberta is 83, while the life expectancy in the province is 82;
- in Canada, 95% of fatalities from COVID-19 are from those over age 60, 80% are in care facilities, and the risk of death from COVID-19 for people under 65 is 0.006%;
- younger people, while not completely immune, have a rate of mortality related to COVID-19 that is no higher than their general mortality rate from other illnesses;
- for most Albertans, the risk of death from other pathogens, accidents, and traffic fatalities is actually higher than it is for COVID-19.
- These statistics suggest that, in retrospect, Government strategies could have focused more effort on protecting the vulnerable while implementing other measures which would be less disruptive for the general population such as the intensive testing and contact tracing suggested by health professionals.
What we are hearing
- The Law Society received notice on May 27, 2020 from the Deputy Minister of Justice and Deputy Solicitor General that Ministerial Order 27/2020, which suspended the running of time for limitation periods and other time periods set by certain listed statutes, will not be extended and, as a result, the time required to take actions covered by those listed statutes will resume running on June 1, 2020. The total effect of the Ministerial Order then is to remove the period of time between the effective date of the Ministerial Order of March 17, 2020 and its expiry date of June 1, 2020 in calculating the time to take steps. For example, a limitation period to commence a claim under the Limitations Act which otherwise would have expired on June 30, 2020 would now be extended to approximately mid-September. Any person who believes that a claim was impacted by this Ministerial Order should confirm with legal counsel.
What we are saying
- On May 27, 2020, the Chief Justices of the Court of Appeal and the Court of Queen's Bench as well as the Chief Judge of the Provincial Court of Alberta delivered a letter to the Law Society of Alberta and the Alberta Branch of the Canadian Bar Association to update lawyers regarding the steps being taken by the Courts to facilitate a return to more regular sittings of the trial courts in response to the Province of Alberta's relaunch strategy.
- Unfortunately, there was not much information that suggests the capacity of these Courts to hear and resolve matters will be returning to normal in the near future. Of note from the letter is the following:
- The Court of Appeal has been operating at full capacity and has not had its hearing schedule impacted, due in part to appeals being argued by legal counsel only and there not being live witnesses.
- The Government of Alberta has committed $27 million in funding to improve the technology used by the Alberta justice system.
- The biggest barrier to the resumption of normal operations for the trial courts is the implementation of appropriate sanitation protocols.
- A limited number of Queen's Bench courtrooms are being equipped with new plexiglass shielding for in-person criminal trials in Edmonton, Calgary, Red Deer, and Lethbridge, with similar steps being contemplated for Provincial Court criminal courtrooms.
- The Court of Queen's Bench will not be taking its annual summer recess and will instead conduct as many hearings as circumstances allow through July and August 2020 to reduce the current backlog of applications.
- Judicial mediation will also be offered to attempt to resolve exiting court actions.
- Our takeaway from this letter is that the Courts will be focusing on dealing with criminal and family law claims for the foreseeable future and that civil matters will not be a priority. This may lead some counsel to try to settle matters through more urgent negotiation or lead parties to convert an existing litigation matter commenced via Statement of Claim to be converted to a private arbitration for more timely resolution.
By McLennan Ross Labour & Employment Team
What we are seeing
- The Government of Canada has extended the Canada Emergency Wage Subsidy (CEWS), which provides subsidies to help businesses keep employees on payroll or re-hire workers previously laid off, to August 29, 2020. The Government has created an on-line calculator to help determine eligible subsidy amounts.
- To date, the Government has not stated whether it will extend the Canada Emergency Response Benefit (CERB) beyond its initial 4-month time limit. The Government has paid out over $40 billion in CERB payments since being implemented, although a percentage of that amount will be returned to the Government when recipients pay taxes on the amount received and recovers improperly paid benefits.
- A concern with the CERB is that it may create too much of an incentive for employees not to return to work. As it is not taxed when paid, and as the benefit is the same $500 per week irrespective of the employee's past earnings, the subsidy in Alberta is roughly the net equivalent of an employee earning $17.00 an hour for a 40-hour work week; $19.00 an hour for a 35-hour work week and over $22.00 an hour for a 30-hour work week. Although some tax will have to be paid on the benefit amount at some point, many entry level employees would prefer to have the cash in hand now (without having to work) and will address the tax issue next year.
- With the provincial economies re-opening across the country, and employers needing their employees to return to work, even if on reduced hours, it would be counterintuitive for the Government to continue a benefit that gives employees an attractive alternative to returning to work.
What we are hearing
- On May 25, 2020, the federal Government announced it was in discussions with the provinces to ensure that "every worker in Canada who needs it has access to ten days of sick leave a year." Alberta, unlike some provinces in Canada, does not currently statutorily guarantee that employees must be given paid sick leave. Most provinces that do have such a guarantee only guarantee employees 3 sick day per year. The reaction to this announcement from businesses has been strongly negative. If the leave does not require a doctor's note, it will invariably lead to employees treating the sick leave as additional vacation and taking more time away from work. If, to address this concern, a doctor's note is required to take advantage of the sick leave, it will also place an increased burden on the healthcare system. As employment standards fall within provincial jurisdiction other than for federally regulated industries, it will ultimately be up to the Alberta Government to implement such a program. We expect this program will be limited to sick leave related to COVID-19, at least initially, since that is what it is intended to address, particularly once the CERB ends.
- The various Government of Canada programs available to energy producers in Alberta seem to be providing some relief for employers, although many are disappointed by the strings attached to the relief programs or are taking a wait-and-see approach on their effectiveness. These programs include:
- Interest free loans from the Business Development Bank and loan guarantees of up to $100 million per company from Export Development Canada;
- The Large Employer Emergency Financing Facility (LEEFF), which provides financing up to $60 million, but with strings such as limits on executive pay, dividends, and share buy-backs;
- The CEWS that is discussed above;
- The Well Cleanup Program; and
- The creation of the methane reduction fund.
- The CBC has summarized each program that it believes may be of assistance for energy producers and how they have been received to date.
- As all of Alberta is now at Stage 1, with Stage 2 tentatively set to be implemented in mid-June, it is more important than ever to follow the advice of Alberta's Chief Medical Officer to avoid a step back in the relaunch strategy. The Government of Alberta has also finally followed the direction of this blog by reducing its COVID-19 news conferences from daily to only holding them on Mondays, Wednesdays, and Fridays.
What we are saying
- The federal Government continues to support the operation of the Temporary Foreign Worker Program (TWF) and the Seasonal Agricultural Worker Program (SAWP) in all Provinces during the COVID-19 pandemic, recognizing the vital role these workers play in supporting food security and other industries critical to the Canadian economy.
- The Government of Canada recently modified the criteria relating to the Temporary Foreign Worker Programs and published a brief guide to assist employers in understanding these changes. Key components include:
- Foreign workers must complete the 14-day period of quarantine upon arrival as outlined under the Quarantine Act, and the employer must ensure the worker does not interact with workers or other persons who are not in quarantine.
- The worker's period of employment begins upon arrival to Canada and includes the mandatory quarantine period.
- The employer must pay the worker regular pay and benefits for the quarantine period including a minimum of 30 hours per week at the hourly rate of pay specified on the Labour Market Impact Assessment (LIMA) and/or offer of employment. For SAWP workers, the 14-day period of paid quarantine will be in addition to the minimum 240 hours of pay as specified in the SAWP contract.
- The employer cannot authorize the worker to work during the quarantine period, even if requested by the worker, although there are some discrete exceptions, such as providing an essential service.
- The Canada Emergency Response Benefit (CERB) may be available to workers; however, CERB is not available for the initial quarantine period.
- Employers must not terminate the employment contract due to a worker contracting COVID-19.
- If workers become ill after the initial quarantine period, they may be entitled to either paid or unpaid sick leave, depending on their employment contract and the relevant federal or provincial employment standards, including any newly enacted legislation for job-protected leave because of COVID-19.
- If employers provide accommodation, there are additional guidelines:
- Employers must house quarantined workers in accommodations that are separate from those not subject to quarantine.
- The employer may house workers who are subject to quarantine together, but the housing must enable them to be 2 metres apart from each other at all times, although shared facilities (for example bathroom, kitchen, living space) are allowed.
- If a new worker arrives at the accommodation facilities during the quarantine period, the quarantine period restarts.
- The employer is required to provide cleaning materials.
- If a worker becomes symptomatic, the employer is required to immediately provide accommodations that enable the worker to be isolated from others.
- The above requirements have created significant changes to Alberta's farming industries. The delays in ensuring workers arrive on time is compounded by the mandatory quarantine period, resulting in anticipated substantial loss of business profits. If your business is encountering challenges with meeting the requirements of the SAWP or TFW programs, consider posting the available employment positions on the Alberta Agricultural Job Connector.
By McLennan Ross Labour & Employment Team
What we are seeing
- Alberta has partnered with the Federal
Government to provide up to $5,000,000 in grant funding to agri-businesses to
support the training of new employees. This new program will provide support to
the agricultural and horticultural businesses and services to help address the
impact of COVID-19. The grant is intended to offset the costs of training and
ensuring safety protocols are in place for new employees hired from the
available domestic labour pool. The government contribution will be up to
$2,000 per new employee and up to a maximum of $50,000 per employer. The
program is structured through a grant process and administered on a first-come
basis. Update: Application information can be found here.
- Agri-employers may also be interested in other
available funding programs through the Canada-Alberta Job Grant, such as the
Canada-Alberta Job Grant training program that contributes grant funding to
eligible employers of up to two-thirds of the cost to a maximum of $10,000 per
trainee per fiscal year. If hiring and training an unemployed Albertan, up to
100% of training costs could be covered, up to $15,000 per trainee. The
employer is required to contribute a minimum of one-third of the total training
costs for existing employees. More information can be found here.
- Agri-employers who hire temporary foreign
workers may be eligible for funding through the Mandatory Isolation Support for
Temporary Foreign Workers Program (MISTFWP), which will assist employers with
incremental costs associated with the mandatory 14-day isolation period imposed
under the Quarantine Act on temporary
foreign workers entering Canada. The MISTFWP will provide a maximum
non-repayable contribution amount of $1,500 for each temporary foreign worker. More information can be found here.
What we are hearing
- The Government of Alberta continues to announce
positive trends in its statistics more than one week after the implementation
of Stage 1 of its relaunch strategy. Active cases are falling (consistently under
1,000), and new cases recorded over the 10 days have been the lowest since
mid-March 2020.
- As the cases remain stable and the Chief
Medical Officer did not see any concerning increase of cases, the staggered
implementation of Stage 1 in Calgary and Brooks has proceeded as scheduled on
May 25, 2020 with bars, restaurants, hair salons, and barbershops being
permitted to open, with some restrictions. Stage 2 is currently scheduled to be implemented on June 19, 2020, but
is contingent on the province's ability to keep infection rates low, which can
only occur if the public continues to follow public health guidelines. The focus on infection rates is somewhat
curious given the purpose of restrictions was to prevent overwhelming the
healthcare system, not stop everyone for getting the virus.
What we are saying
- The Court of Queen’s Bench again expanded its
ability to hear applications. On May 19,
2020, the Court announced a process for applications to be heard at the Master
level if both parties agreed. The Court
announced on May 21, 2020 that it is now accepting applications brought without
notice for matters that are beyond the jurisdiction of a Master and must be
granted by a Justice.
- We have also been informed informally that
there will be a significant attempt to expand the scope of matters that can be
resolved by the Court of Queen’s Bench effective June 1, 2020, notwithstanding
the previous announcement on May 14, 2020 that the Court had extended its
limitation of hearings for emergency and urgent matters to June 26, 2020. Although no official announcement has been
issued, we believe it likely that the Court of Queen’s Bench will be formally
allowing applications to be heard by telephone or video conference and not
require them to be argued in person. Allowing
more video conference applications is both sensible and efficient.
-
Expanding
the conduct of court matters remotely is consistent with other Ministerial
Orders recently issued by the Government of Alberta, including permitting
personal directives, powers of attorney, and wills to be witnessed by
“electronic methods of communication” where it is impossible or medically
unsafe for parties to physically attend before lawyers (more information here)
and permitting lawyers to meet with guarantors by two-way video-conferencing,
to complete the certificate required under the Guarantees Acknowledgement Act (more information here).
By McLennan Ross Labour & Employment Team
What we are seeing
- The Government of Canada announced that the border with the United
States will remain closed for another 30 days to June 21, 2020 for
non-essential travel. The border will remain open for commercial traffic
and essential workers, as well as illegal immigration that continues
unabated at Roxham Road. Prime Minister Trudeau suggested that
travellers returning to Canada may be required to self-isolate for 14
days, an idea described by Canada's Chief Public Health Officer Dr.
Theresa Tam as a "cornerstone" of Canada's federal pandemic policy going
forward.
- If the 14-day quarantine does become a requirement for travellers,
it is realistic to assume that businesses will continue to generally ban
non-essential business travel and direct employees to continue to
conduct business via telephone and video conference.
What we are hearing
- The Government of Ontario announced yesterday that publicly funded
primary and secondary schools would officially remain closed for the
rest of the school year. The Province also issued a Framework for
Continued Learning which announced more summer learning programs to
increase capacity for student participation and an enhanced learning at
home portal to assist students to refresh their learning for the 2020-21
school year. New health and safety protocols will be developed before
the commencement of the next school year.
- In Alberta, the
Government had announced last week that no decisions have been made on
school operations for the 2020-21 school year. Although the potential
opening of K-12 schools is part of Stage 2 of Alberta's relaunch
strategy, it will continue to be guided by public health officials who
have yet to determine whether schools will reopen and, if so, with what
restrictions.
- Although the reopening of day care, out of school
care, and day camps formed part of Phase 1 of Alberta's relaunch
strategy, they were limited to cohorts of 10 people, including staff and
children. With businesses reopening, access to childcare is a
fundamental concern for parents with small children who are being
directed to return to the workplace.
- The limits on gatherings in Alberta was increased last Friday to 50 people.
What we are saying
- The Court of Queen's Bench continued to release updates regarding operations on May 19, 2020:
- The Court announced that effective immediately, in cases where each party is represented by counsel, contested applications that would otherwise be heard in Master's Chambers, including special applications that would normally be heard via a dedicated 1/2 day hearing may be submitted to the Court by desk application with written argument if both parties consent or, in exceptional circumstances, if directed by the Court.
- The Court provided more details regarding mediation and alternative dispute resolution mechanisms available to parties in Family law disputes.
- As is obvious from these announcements, the Court is very concerned about the backlog of cases caused by the Court of Queen's Bench being closed for non-emergency matters and is actively attempting to address that backlog in a manner which still affords all parties the procedural protections historically available to litigants. Other parties may choose to pursue private methods of dispute resolution such as arbitration and mediation.
By McLennan Ross Labour & Employment Team
What we are seeing
- The Government of Canada has continued to update its information regarding how additional income received by employees impacts Canada Emergency Response Benefit (CERB) eligibility.
- The Government updated the CERB to allow employees to earn income of up to $1,000 for each 4-week period and still be eligible for the benefit. What was unclear was whether the requirements that exist under the Employment Insurance (EI) system for employers to make additional payments to workers through a Supplemental Unemployment Benefit (SUB) plan applied to similar top ups for employees receiving the CERB. The Government of Canada confirmed that SUB plans do not apply to employees who are receiving the CERB.
- Eligible individuals collecting the CERB receive $2,000 for a 4-week period and may earn up to $1,000 from other sources in each benefit period from March 15, 2020 to October 3, 2020. Amounts received by individuals from any employer in excess of the $1,000 threshold will create an obligation to repay CERB amounts in the future.
- The Government of Canada also added information about whether being in receipt of a severance package would impact CERB eligibility. It had been unclear whether an employee was better off being placed on a temporary leave of absence and defer actual termination (and receipt of a severance amount) until the CERB had been received in full. It has now been clarified by the Government that "[a] severance payment does not impact an individual's eligibility for the Canada Emergency Response Benefit."
What we are hearing
- The Government of Albert did announce the commencement of Stage 1 of the Province's relaunch strategy on May 13, 2020, which we summarized in an e-alert.
- Due to elevated incidents of COVID-19 in the Province's two hotspots, the launch of Stage 1 was staggered in Calgary and Brooks with some business eligible to reopen on May 14, 2020 with others, such as hair salons and barber shops, and cafes, pubs, bars, and restaurants at 50% occupancy, having their reopening further delayed to May 25, 2020.
- In Ontario, the Government announced the timing of limited business openings as part of its reopening strategy:
- Certain types of businesses could reopen on a restricted basis on May 16, 2020, including golf courses, marinas, boat clubs and public boat launches, private parks and campgrounds, and business that board animals.
- Other businesses will be able to reopen on May 19, 2020, again with restrictions including retail services that are not in shopping malls and have separate street front entrances, seasonal businesses and recreational activities for individual or single competitors, such as indoor and outdoor non-team sport competitions that can be played while maintaining physical distancing and without spectators (e.g., tennis,t rack and field, and horse racing), animal services (specifically pet care services, such as grooming and training), and regular veterinary appointments, indoor and outdoor household services that can follow public health guidelines (such as housekeepers, cooks, cleaning, and maintenance), non-essential construction, and certain health and medical services (such as in-person counselling).
- Ontario will be providing an update on school closures and childcare early next week, with the expectation being that, like in Alberta, schools will not reopen this school year and the earliest recommencement will be September 2020.
- The University of Alberta announced on May 14 that most classes in September 2020 will remain online, with some exceptions. The University of Calgary is taking a similar approach.
What we are saying
- The Court of Queen's Bench released an update regarding future court operations. The Court issued as new Master Order which addressed criminal, civil and family matters. For civil matters, all hearings scheduled for between June 1 and June 26, 2020 were adjourned indefinitely; however, all special applications scheduled for at least 1/2-day hearing on or after June 29, 2020 were directed to proceed as scheduled, with information regarding filing deadlines for the parties. Further, all filing deadlines under the Alberta Rules of Court continued to be suspended until June 26, 2020.
- This Master Order is the clearest signal yet that the Court of Queen's Bench is confident that it can start hearing matters in person, albeit with significant restrictions. As special applications are often attended only by the counsel arguing the application with clients only sometimes in attendance, it is reasonable to conclude that these special applications will be proceeding with express direction limiting who can actually be in attendance. Trials will likely now be looked at to see how they can be effectively and fairly run while complying with public health directions. Regular applications, where 20 to 30 such applications are often scheduled in the same morning in the same courtroom and heard one after another, will require significant more logistical planning.
- A harbinger for the process the Court is considering is an announced Family Docket Court being implemented in Calgary and Edmonton to triage family law files and assist in resolving issues using different processes.
- In summary form, the Family Docket Court process is that one party files a Notice to Attend indicating the relief sought and the date the filing party requests the matter be heard. The Court will then review the Notice to Attend and will try to resolve the matter by way of a Consent Order or to schedule alternate dispute resolution. If neither of those options are possible, the Court will then schedule the matter for a more formal court hearing. For now, those hearings are limited to desk applications or special applications, but once suspensions are lifted, more options will become available.
By McLennan Ross Labour & Employment Team
What we are seeing
- On May 11, 2020, the Government of Canada announced the creation of the Large Employer Emergency Financing Facility (LEEFF) to provide bridge financing for large- and mid-sized employers to help protect Canadian jobs and avoid bankruptcies of otherwise viable firms. Although in the final stages of establishing the program with further information about the application process to be provided shortly, some of the details provided include:
- The program will not be available to resolve insolvencies or restructure firms or to provide financing to companies that otherwise have the capacity to manage through the crisis. In that regard, an assessment may be made of its employment, tax, and economic activity in Canada, as well as its international organizational structure and financing arrangements.
- Companies seeking support must demonstrate how they intend to preserve employment and maintain investment activities.
- Recipients will need to commit to respect collective bargaining agreements and protect workers' pensions.
- There will be strict limits to dividends, share buy-backs, and executive pay.
- Finally, recipient companies will be required to commit to publish annual climate-related disclosure reports consistent with the Financial Stability Board's Task Force on Climate-related Financial Disclosures, including how their future operations will support environmental sustainability and national climate goals.
- Though not focused on the energy sector, LEEFF is being identified as a partial response to the liquidity crisis facing energy producers in western Canada. A concern is that certain qualifying criteria will effectively exclude significant energy producers due to international operations or climate-related concerns.
What we are hearing
- The Government of Alberta released an online tool to help businesses prepare for reopening.
- This tool is a collection of COVID-19 information created for businesses identified as being able to reopen as part of Stage 1 of the Alberta relaunch strategy.
- In addition to the strategy overview, the Government has dedicated a webpage to providing an update with respect to where the province is at and how the relaunch is proceeding from a healthcare perspective.
- On Wednesday, May 13, Alberta expects to provide an update on whether the province has met the criteria to implement Stage 1 on May 14, 2020. Dr. Hinshaw met with the Government of Alberta's emergency management committee during the evening of May 12, 2020 to discuss the risks and rewards of a regional approach to reopening sectors of the economy.
- The Alberta approach contrasts favorably with what is occurring in Ontario, where Premier Ford publicly stated that the province has hit Stage 1 of its three-stage framework and there would be good news announced on May 14, 2020, only to be contradicted by the Chief Medical Officer of Health who subsequently stated that he was not confident that the province has met the threshold to start on its economic recovery plan. Premier Ford's office clarified his statement to suggest he would only be provided details about Stage 1 on May 14, 2020, not that the province was at Stage 1.
What we are saying
- The Court of Queen's Bench took another step towards opening by announcing that it would now process applications that do not require notice to an opposing party. These orders are to be submitted by email and can include matters such as serving commencing documents, matters where the opposing party is consenting and correcting inadvertent errors in court and other documents. The response to the application will also be returned by email, including either the electronically signed Order, or the Master's reasons for denying the application.
- Although this direction does not currently allow for matters in dispute between parties to be resolved and therefore will not do much to alleviate the backlog of applications facing the court when it reopens on a broader basis, fine tuning the submission of court applications via email may help streamline the court process in the future. In that context, it is a welcome development.
By McLennan Ross Labour & Employment Team
What we are seeing
- As we discussed previously, the Government of Canada and the provinces reached agreement to implement the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. This program will lower rent by 75% for small businesses that have been affected by COVID-19.
- The program covers 50% of 3 monthly rent payments that are payable by eligible small business tenants who are experiencing financial hardship during April, May, and June, with the landlord and the tenant being responsible for 25% each.
- Landlords and tenants are making various arrangements between them. Some landlords are continuing operating costs but forgiving or deferring rent for a limited time. A big question is whether tenants will survive given reductions in business or prohibitions on operating. The longer the restrictions continue, the greater the risks.
- The program requires qualified commercial property owners to apply. Some commercial landlords may not want to support a tenant for 3 months when the landlord believes the tenant has no viable chance to survive. Further, if the landlord does participate in the CECRA program, it is a condition that the landlord cannot evict the tenant while the agreement is in place (though finding new tenants would also be a challenge for landlords).
- The program allocates the rent cost between the program, the landlord, and the tenant, but landlords still have mortgage obligations to financial institutions. Although some banks are deferring mortgage payments, they are not being reduced so the ultimate debt obligation for the landlord will still have to be paid in full eventually.
What we are hearing
- The Government of Alberta will be announcing the implementation of its relaunch strategy on May 12, 2020. As we previously summarized the Alberta strategy called for some immediate easing of restrictions followed by reopening in stages, with each stage being dependent on the province's ability to keep infection numbers low, based on metrics such as hospitalizations and Intensive Care Unit occupancy.
- The Government's plan document stated that "[c]onfirmed cases will be monitored in real time to inform proactive responses in localized areas of the province." This phrase has been confirmed by Premier Kenney to mean that not all parts of the province will reopen on the same schedule with decisions being made based on regional statistics.
- Although better than the alternative, businesses with operations in multiple provinces who were already having to juggle multiple reopening strategies may now also have to accommodate different regulatory requirements within the province as well.
What we are saying
- As we have discussed previously, as the reopening of the Alberta economy is slowly being implemented, employers are starting to issue recall notices. Some issues that we anticipate arising include the following:
- Does an employer have to recall an employee who was temporarily laid off? No, there is no obligation to recall an employee. An employer can still terminate the employment relationship as long as the termination is not due to a reason prohibited by statute such as the Alberta Human Rights Act, the Workers Compensation Act, or the Occupational Health and Safety Act. The employee would still be entitled to the appropriate amount of pay in lieu of notice as determined by statute as well as under any employment agreement or at common law.
- Can an employee refuse to return to work because he or she feels subjectively unsafe? Employers have the obligation to ensure that the work environment is safe for employees, but an employee's subjective fear of contracting COVID-19 is not sufficient to allow the employee to refuse to attend work.
- Can an employer terminate an employee who cannot return to work due to having COVID-19 or caring for a family member who has COVID-19? As a general rule, no. Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate any employees who are unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19. This could include a situation where another family member is ill or in self-isolation. The Alberta Ministerial Order providing family leave related to COVID-19 is still in effect. There is protection from termination for employees on this leave.
- Can an employee refuse to return to work due to childcare obligations? Again, under the Ministerial Order an employee is entitled to unpaid leave for the period of time recommended or as directed by the Chief Medical Officer to meet the employee's responsibilities in relation to a family member who is under quarantine or in relation to a child due to school or daycare closures. An employer is entitled to request reasonable documentation to support the leave, but a medical certificate cannot be required. Even after this leave no longer applies, there is a duty to accommodate employees based on family status, if an employee can show there are no other reasonable options for childcare. This duty to accommodate may continue until alternate childcare options are available unless accommodation would cause the employer undue hardship. Whether the other available options are reasonable (such as due to cost or time restraints) and whether the absence would cause the employer undue hardship, would need to be determined on a case-by-case basis.
- As each situation may have some nuances, we recommend consulting experienced Employment Law counsel before proceeding with a termination where the employee is suggesting that a return to work in the time called for in the recall notice is not possible.
By McLennan Ross Labour & Employment Team
What we are seeing
-
The CBC has reported a large number of COVID-19
related lawsuits have already been commenced with more expected to hit the
courts in the near future. These cases relate to denied business interruption
insurance claims, claims against nursing homes, price gouging, refusals by
airlines and other business to issue ticket refunds, and similar claims for
refusals to refund tuition and campus fees. There are also several class action
lawsuits already commenced against a long-term care facility in Ontario and various
insurers.
-
Thus far, there has been no indication from the Federal Government that it intends to file legislation to either immunize businesses from such claims or provide an alternate method of adjudicating such disputes.
-
The Federal Government did announce that the Canadian Emergency Wage Subsidy (CEWS) program will be extended beyond its originally stated expiry date of June 6, 2020. The CEWS program allows qualified employers to receive a wage subsidy of
up to the lesser of $847 of 75% of the employee’s pre-pandemic income per week
for each employee. McLennan Ross LLP’s summary of the program can be found here.
What we are hearing
- The Chief Justice of the Alberta Court of Queen’s Bench held a virtual town hall with lawyers on May 7, 2020 that provided some indication of how the Courts will start to reopen once it is safe to do so. The Court sent a letter to the profession on May 8, 2020 summarizing what was disclosed at the town hall.
- Highlights from the letter include:
- The Alberta Court of Appeal has continued to hear all matters with 90% of scheduled hearings being successfully completed in April 2020.
- The Court of Queen's Bench continues to only deal with emergency matters and desk applications. It is attempting to expand the use of the WebEx platform to allow it
to hear matters via videoconference; however, this has been hamstrung by a lack
of WebEx licenses. The Court is attempting to re-schedule Judicial Dispute
Resolutions (JDRs) that were cancelled after March 14. JDRs previously
scheduled between May 1 and May 31, 2020 are being rescheduled to proceed via
WebEx.
- The Court is working on processes to allow Masters’
Chambers to begin accepting ex parte applications electronically and eventually
to hear contested applications either remotely using WebEx or to decide on the
basis of written submissions only.
- The Provincial Court has been attempting to hear
pre-trial conferences and administrative matters via teleconference, but is having
to reschedule trials and other contested matters. It too is trying to secure
the technology to hear matters via WebEx.
- The Alberta Government has committed $27 million to
assist in improving the court system through technological innovation.
What we are saying
- As the reopening of the Alberta economy is slowly being
implemented, employers who issued temporary layoff notices under the Employment
Standards Code are now going to be recalling employees and asking them to
return to work. An issue that has arisen is whether the employer can issue the
formal recall notice under the Code and direct the employee to work reduced
hours as operations come back online and whether the employee would be ending
his or her employment by refusing to return to work.
- The Code does not contemplate a phased recall. The
intent of the temporary layoff is to allow the employer to maintain the
employment relationship and not terminate the employee, but still place them
effectively on an unpaid leave. As mentioned previously, issuing a temporary
layoff notice could be considered constructive dismissal at common law unless permitted
by an employment or collective agreement. If the employee does not claim
constructive dismissal, he or she is then on leave until recalled or
terminated.
- When recalling the employee, if the employer is
directing the employee to accept a different role, responsibilities,
compensation, or hours, an employer would again be potentially constructively
dismissing the employee. The temporary layoff notice provisions in the Code are
designed to preserve the employment relationship and it would arguably be
inconsistent for the employer to be able to recall the employee and implement
materially different terms and conditions of employment.
- As with the issuance of the temporary layoff notice at
first instance, it would be up to the employee to decide if he or she would
rather have a job at temporarily reduced hours or claim constructive dismissal.
Although every case is fact specific, it would be aggressive for an employer to
issue a recall notice to an employee directing the employee is to work reduced
hours and then terminate the employee’s employment without payment in lieu of
notice for failing to come back to work.
By McLennan Ross Labour & Employment Team
What we are seeing
- The Alberta Government announced the granting of another Ministerial Order suspending any limitation periods found in certain legislation administered by the Minister of Community and Social Services from March 17 to June 1, 2020. This Ministerial Order is similar to the broader Ministerial Order which suspended limitation periods and any period of time within which any step must be taken in any proceeding covered by the legislation (and regulations enacted under that legislation) listed in the Appendix to the Ministerial Order. This included the Limitations Act and the Judicature Act, the latter being the enabling statute for the Alberta Rules of Court.
- Of note is that despite the delay of over one month between each of these Ministerial Orders, the end date of the suspension for both is June 1, 2020. This may be nothing more than a desire to have commonality between the two Orders but may also be reflective of the current view of the Government of Alberta of when it hopes the Courts will be able to reopen in some capacity.
What we are hearing
- The Court of Queen’s Bench issued an announcement on May 5, 2020 regarding the launch of a summary disposition court to hear matters via Webex, link here.
- Although not clear in the announcement, from a review of the “Summary Disposition Hearing Request Form” that is to be completed where parties agree to proceed in this matter, this court may be limited to criminal matters only.
- Unlike the Alberta Court of Appeal, to date the Court of Queen’s Bench has not been openly scheduling matters to be heard via video conference due to technological and staffing limitations. This summary disposition court may be the first step towards the Court of Queen’s Bench expanding how it hears matters during this pandemic to address some of the backlog of cases which have stalled because of the Court of Queen’s Bench limiting in-person hearings to emergency matters only.
What we are saying
- Many employers have availed themselves of the Canada Emergency Wage Subsidy (CEWS) to receive a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. As we discussed in our blog on April 17, 2020, the subsidy is the lesser of $847 or 75% of the pre-crisis wages or salaries of existing employees. Pre-crisis remuneration for a given employee is based on the average weekly remuneration paid between January 1 and March 15, 2020.
- The Canadian Government stated that its hope was that CEWS recipient employers would keep employees whole with respect to their pre-crisis earnings, with the employer paying the remaining 25%. However, this employer top-up is not a part of the CEWS legislation and is only described on the Government of Canada website as a best efforts expectation.
- A question that has come up is whether an employer can give an employee a raise or bonus while receiving the CEWS subsidy. From our review of the CEWS program information here, there does not appear to be any prohibition against providing an employee such a raise or bonus. It would not affect the subsidy amount the employer would be eligible to receive for past eligibility periods as that amount is based on earnings already received by the employee. That being said, the Government of Canada has made it clear it will be reviewing the businesses who received the CEWS subsidy, and although a raise or bonus does not seem to be prohibited, we cannot predict how the Government will react to an employer that applies for a subsidy but can afford to increase its employees’ compensation.
By McLennan Ross Labour & Employment Team
What we are seeing
- As we discussed previously, Ontario has also now announced a roadmap for reopening the province, as well as sector-specific guidelines to assist employers to safely return workers to the workplace and prevent the spread of COVID-19, link here.
- On April 30, 2020, the Ontario Government also released sector-specific safety guidelines, providing direction to employers as they prepare for the gradual reopening of the provincial economy.
- The initial guidelines released by the Government are specific to employers operating in the food manufacturing and processing, restaurant and food service, and agricultural sectors. The guidelines outline recommendations for employers including means by which appropriate physical distancing can be achieved, as well as workplace modifications and sanitation practices that can be adopted to prevent the spread of COVID-19.
- Following the release of the guidelines, the Ontario Government announced that, provided they abide by strict public health measures, a limited number of businesses will be permitted to resume operations on Monday, May 4 at 12:01 a.m.
What we are hearing
- The Alberta Government has announced the first North American public health app, called ABTraceTogether for contact tracing based on the newly released Apple and Google Bluetooth based API, link here.
- ABTraceTogether relies on wireless Bluetooth technology to log interactions as “an encrypted digital handshake”, which occurs when two phones that each have the app get within 2 metres of one another for a total of 15 minutes within a 24-hour period. People with the app on their cellphones who later test positive for COVID-19 will be asked to voluntarily upload encrypted data to Alberta Health Services contact tracers. Those tracers would then be able to use that information to track down people who had close contact with the infected person.
- There are clear privacy concerns regarding the use of the information collected by this app. The Alberta Government is assuring those who download the app that user’s information is only collected by Alberta Health Services and will only be accessed if a user receives a positive diagnosis for COVID-19. In addition, the following clarifications and assurances have been provided about the app:
- It does not collect data about location.
- It uses Bluetooth to approximate distance to other phones running the app. When close to another phone running the app, both phones use Bluetooth to exchange a Temporary ID, phone model, and Bluetooth strength, all of which is stored on the device. It will only communicate with nearby phones for a limited period.
- The Temporary ID is encrypted, can only be decrypted by Alberta Health and Alberta Health Services, and does not otherwise reveal the identity of the user or of any other person with whom the user has exchanged a Temporary ID.
- If a user tests positive with COVID-19, they can provide Alberta Health Services with access to their ABTraceTogether data to facilitate contact tracing.
What we are saying
- As the economy starts to re-open, we will be watching to see whether all the government programs that have been announced create a disincentive for people to return to work. Some employers are already experiencing the phenomenon of people choosing not to work, even when able, because benefits may apply without strict enforcement of the terms.
- Some business owners have historically preferred to hire workers as independent contractors or consultants, finding it easier to manage and no payroll taxes need to be paid. Workers also often prefer this type of relationship as well.
- Some businesses have found that earlier decisions to hire workers as contractors and not employees has impacted their ability to apply for COVID-19 assistance from the Federal Government as they do not have sufficient or any payroll, only invoices received from the contractors.
- Although a short-term answer is to lobby the Government to change the program to allow contractor costs to be considered payroll, businesses should be mindful of the long-term impact of disclosing their business operation strategy. An employer who fails to deduct the required CPP contributions or EI premiums may be required to pay both the employer’s share and the employee’s share of any contributions and premiums owing, plus penalties and interest.
- Although how the parties define the relationship is important and something the Canada Revenue Agency looks at in determining if the relationship is truly business-to-business as opposed to employer-and-employee, the CRA also looks at the nature of the work relationship in order to determine the true relationship.
- Businesses in a short-term crisis situation may not have a choice, but they should still be mindful of the long-term consequence of disclosing if a decision to use contractors was made for convenience and there really is no difference between what the contractor does and what a traditional employee would do.
By McLennan Ross Labour & Employment Team
What we are seeing
- The Federation of Canadian Municipalities released a report highlighting the need for urgent federal assistance to address the impending financial crisis in cities and municipalities due to COVID-19. To view the report, click here.
- According to the report, municipalities provide many of the daily essential services relied upon by Canadians, including local police, ambulance, and fire services, maintenance of roads, bridges, and other essential infrastructure, public transit for essential workers, water and wastewater services, garbage collection and recycling, local social services, and housing for vulnerable residents and local public health agencies.
- With plummeting revenues, rising expenses, and a legal proscription against running operating deficits, municipalities are at imminent risk of having to cut essential services to Canadians to remain solvent. In order to avoid such cuts, emergency operating funding from the Federal Government will be required to cover the anticipated near-term gap of between $10 and $15 billion for municipalities nationwide, with immediate advance payments being provided to municipalities facing urgent liquidity issues.
- To date, municipalities have been specifically exempted from such emergency measures such as the Canada Emergency Wage Subsidy, the 10% Temporary Wage Subsidy or the various credit programs.
- Canada’s budget watchdog indicated the federal deficit will likely hit $252 Billion this year, which highlights the current and future costs of this crisis and the limitations on Government to do anything more than it already has.
What we are hearing
- As we anticipated, the Alberta Government introduced its relaunch strategy for reopening the Alberta economy in stages starting in May. To view the strategy, click here.
- The Alberta strategy calls for the implementation of immediate early actions, some of which start on May 1, 2020, followed by three stages, with movement through the stages dependent on the ability to keep infection rates low and within the capacity of the Alberta healthcare system, as measured by the percentage of positive COVID-19 tests as well as hospitalization and ICU rates. If there is an unacceptable increase in either of these metrics, it appears that movement back a stage would occur.
- A summary of the highlights from each milestone include the following:
- The immediate early actions include the scheduling of non-urgent surgeries, the opening of dental and other regulated healthcare facilities, access to public lands and parks, booking for use of campgrounds from June 1 forward, access to boat launches, and the opening of golf courses other than clubhouses and pro shops.
- Stage 1 allows for some businesses and facilities to resume operations with 2 metre physical distancing requirements and other public health guidance in place, which could occur as early as May 14. This includes post-secondary institutions, retail businesses such as clothing, furniture, and bookstores, some personal services such as hairstyling and barber shops, museums and art galleries, daycares with limits on occupancy, summer camps with limits on occupancy, cafés, restaurants (minors allowed in liquor-licensed establishments) with no bar service and public seating being limited to 50 per cent capacity.
- Stage 2 will expand the businesses that can open, again with 2 metre physical distancing requirements and other public health guidance in place, to include potential Kindergarten to Grade 12 schools with restrictions, libraries, personal services such as artificial tanning, aesthetics, cosmetic skin and body treatments, manicures, pedicures, waxing, facial treatments, massage and reflexology and movie theatres and theatres with restrictions. As well, some large gatherings may be allowed, with the maximum number of people to be determined.
- Stage 3 will see the full reopening of business and services with limited restrictions on permitted larger gatherings, with the maximum number again to be determined. Arts and culture festivals, concerts, and major sporting events will be permitted with enhanced protection controls in place. Nightclubs, gyms, pools, recreation centres, and arenas will reopen with enhanced protection controls in place.
- For all stages, physical distancing of 2 metres remains in place, with the encouragement to wear a mask in public ending after stage 2. Isolation and quarantine continue through stage 2 for any returning travelers or where close contact with someone who is COVID-19 positive has occurred. Non-essential travel remains not recommended until stage 3.
What we are saying
- As we previously summarized here, in recognition of the impact COVID-19 was having upon employers and employees and the need for some of the normal workplace rules and expectations to be relaxed, the Alberta Minister of Labour granted a Ministerial Order that temporarily altered the provisions of the Employment Standards Code and Employment Standards Regulation.
- We considered most of the changes would be sensible on a permanent basis, but were stated to only last for as long as the COVID-19 crisis continued. We are now being asked how much longer employers and employees can expect these changes to remain in place.
- Officially, these changes expire and Alberta returns to its previous Employment Standards legislation on the earliest of the following dates:
- August 14, 2020;
- 60 days after the state of public health emergency is terminated (it is set to expire on June 15, 2020, unless renewed or terminated earlier);
- When the Minister of Labour determines that the relaxation is no longer in the public interest, which is too early to say right now; or
- When cabinet terminates the Order providing the relaxed rules.
- We do not believe any of these things will happen too soon and that the Government is taking a wait and see approach. With the reopening strategy continuing to restrict normal business operations until stage 3, employers will continue to need the relaxed rules and regulations to continue. For instance, the temporary layoff period was extended to 120 days, effective March 17. We believe it likely that the Government will allow the initial 120-day period to run its course, which would be mid-July or later. Further details of the Government’s plans may come with the introduction of its plan to reignite the economy.
