May 4, 2020

McLennan Ross Update for Monday

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.

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