June 29, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • On June 28, 2020, the Government of Alberta announced the opening of its Small and Medium Enterprise Relaunch Grant program. This program provides financial assistance for eligible businesses, cooperatives, and non-profit organizations with less than 500 employees in the form of a grant equal to 15% of their pre-COVID-19 monthly revenue up to $5,000. 
  • The purpose of the grant is to offset such unique COVID-19 expenses such as the installation of physical barriers, PPE, and cleaning supplies as well as more basic costs such as rent, employee wages, replacing inventory, and more. 
  • In order to potentially qualify for assistance, businesses must have: 
    • Faced operational restrictions or closures as a result of public health orders;
    • Experienced a resulting revenue loss of at least 50% in April and/or May 2020; and
    • Be open or plan to reopen as permitted by the lifting of the public health orders. 
  • The program has a budget of $200 million. Application intake started on June 29, 2020. First week applications will be accepted from different regions on different days starting July 4, 2020. THe program will stay in effect until the later of August 31, 2020 or four weeks following the start of Stage 3 of Alberta's relaunch strategy. 
  • One limit to the program is that businesses that received other government assistance such as Canada Emergency Wage Subsidy (CEWS), the Canada Emergency Commercial Rent Assistance (CECRA), or even a loan through the Canada Emergency Business Account (CEBA), are not eligible.
  • This eligibility exclusion may prevent the program from providing the assistance many small businesses in Alberta legitimately need. 

What we are hearing
  • On June 25, 2020, the Government of Alberta provided guidance for industry-initiated COVID-19 testing. This guidance covers all COVID-19 testing requested and paid for by a private enterprise for its employees, contractors, or clients. 
  • Although fairly general, the guidance provides the following important points: 
    • COVID-19 testing must be performed on a voluntary basis, with worker consent; 
    • Only authorized labs can conduct the testing; 
    • All results, whether positive or negative, must be reported to the Chief Medical Officer of Health for Alberta and the Zone Medical Officer of Health; and
    • Industry-initiated testing will be suspended if supplies and/or testing capacity are in short supply and need to be allocated to public testing efforts for priority clinical purposes. 
  • Finally, the document is quite specific in that it does not relieve employers of potential liability for improperly managed testing or for having an unsafe workplace. The document directs employers to seek legal advice on issues of human rights, labour and employment law, privacy, health information, and occupational health and safety before implementing a testing program. Employers should then develop a company policy related to COVID-19 testing based on this advice.

What we are saying
  • With Bill 24 passing third reading, employers are asking how to extend a temporary layoff from 120 days to 180 days. From our review of the Bill, as the amendment applies to employees already on leave, a letter from the employer to all affected employees advising of the extended layoff should suffice. It is recommended that employers attach or include a copy of the relevant portion of Bill 24 which operates to extend the layoff period when providing this notice. 
  • A second question that often follows is whether the employer can extend the layoff and provide the notice of recall in the same letter, with the recall date being several weeks or months in the future, such as August 1 or September 1, 2020. A strict reading of section 64 of the Employment Standards Code suggests that is not permissible. 
  • Section 64 states: 
64(1) An employer may request an employee to return to work by providing the employee with a recall notice.
(2) A recall notice must
(a) be in writing,
(b) be served on the employee, and
(c) state that the employee must return to work within 7 days of the date the recall notice is served on the employee.
(3) If an employee fails to return to work within 7 days of being served with the recall notice, the employee is not entitled to termination notice or termination pay if the employer decides to terminate the employee's employment as a result of the employee's failure to return to work in accordance with the notice.
(4) Subsection (3) does not apply to an employee bound by a collective agreement containing recall rights for employees following a layoff.
  • To be in strict compliance with the legislation, an employer must provide formal written notice to the employee that he or she must return within 7 days. The employee has 7 days to return to work. As such, notice of more than 7 days does not appear to be permitted by the statute. 
There will be no blog on July 1 or July 3, 2020, but we will return on July 6, 2020. 

June 26, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act 2020) passed a third and final reading yesterday in the Legislature. This legislation extends the period of temporary layoffs from 120 days to 180 days, and it is effective as of June 17, 2020. The new legislation still requires royal assent to be in force, and that should occur soon. 
  • On June 25, 2020, the Government of Canada announced additional financial support for students
  • Highlights from the announced support include:
    • The launch of the Canada Student Service Grant (CSSG) which will support post-secondary students and recent graduates as they volunteer to assist with their communities' COVID-19 response by providing a one-time payment between $1,000 and $5,000 based on the number of volunteer hours served. 
    • Investment of $186 million in the Student Work Placement Program to assist post-secondary students obtain paid work experience related to their field of study by funding an additional 20,000 job placements in high demand sectors.
    • Investment of $60 million in wage subsidies for employers to create 10,000 new job placements for young people between the ages of 15 and 30 through the Canada Summer Jobs program.

What we are hearing
  • The creation of a single health unit under Alberta Health Services (AHS) and the resulting centralization of the delivery of healthcare to Albertans was met with some resistance when it was implemented in 2008. There continues to be some criticism of AHS, especially with respect to its annual per capita costs to the public. However, AHS' centralized response to the COVID-19 pandemic and its ability to regulate public health directives has been a strong positive as compared to other provinces with multiple health units.
  • Although Alberta's implementation of its relaunch strategy has been in uniform, the public health guidance from AHS is issued to the entire province. That is not the case in other provinces. In Ontario, for example, neighbouring health units are implement different rules regarding such things as physical distancing and the use of masks. This is leaving some employers frustrated, as some customers are choosing which business to frequent based on whether they have to wear a mask.

What we are saying
  • We continue to see counsel for plaintiffs in wrongful dismissal claims suggest that the stagnant job market caused by the pandemic is a factor that works solely to the benefit of employees in determining their notice entitlement at common law. We have yet to see a judicial decision support that conclusion and we believe that this conclusion is flawed. 
  • An example of the logic used by plaintiff counsel is that the courts have on occasion commented that a depressed local economy can support a longer notice period. Indeed, one of the Bardal factors considered by courts in assessing a notice period at common law is the availability of replacement income for a person with similar characteristics as the employee (age, education, work experience, management responsibility, etc.). Plaintiff counsel, however, have suggested that the paused economy caused by COVID-19 will necessarily result in a longer notice period for the terminated employee in order to give that employee a reasonable opportunity to find replacement income. 
  • This logic is flawed in that it ties the time required for that specific employee to find a job, as opposed to a reasonable person with the employee's personal characteristics. A notice period is not an insurance policy, compensating a particular employee until he or she finds a job. Indeed, how long the employee actually takes to find a job is expressly not a Bardal factor and therefore should be irrelevant. Nevertheless, the evidence on that point may on occasion be referred to as evidence that substantiates the court's assessment of the appropriate notice period using the Bardal factors.
  • In our opinion, the courts will not foist the economic cost of a global pandemic solely on employers struggling to rebuild their businesses as the economy reopens. As long as the court agrees that the termination was done in good faith, the notice period for a terminated employee now should be no different than that employee's notice period in February 2020. Time will tell whether courts accept this logic, and employers should be prepared for either possibility.

June 24, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • On May 27, 2020, we provided a brief synopsis of the continued operation of the Temporary Foreign Worker ("TFW") program during the COVID-19 pandemic. At the time, the Government of Canada had temporarily relaxed some requirements for employers seeking to bring in TFWs in the Agriculture, Food Processing, and Trucking industries.
  • The Federal Government has subsequently further updated certain aspects of the program. Due to higher unemployment rates resulting from COVID-19, recruitment and advertisement requirements have been updated, with recruitment efforts being required to take place in the current labour market to ensure Canadians and Permanent Residents are considered first for available jobs. This update applies to pending Labour Market Impact Assessments ("LIMA") received prior to June 15, 2020 and includes the following:
    • Any ads posted before March 15, 2020 may need to be re-posted for an additional two consecutive weeks.
    • When re-advertising, employers must also meet all the minimum recruitment requirements. 
  • However, as of June 10, 2020, the TFW program is prioritizing certain occupations considered "essential". The program is prioritizing and waiving minimum recruitment requirements for the following non-exhaustive list of occupations:
    • Agricultural service contractors, farm supervisors, and specialized livestock workers;
    • General farm workers;
    • Labourers in food, beverage and associated products processing;
    • Harvesting labourers;
    • Butchers, meat cutters, and fishmongers in retail and wholesale;
    • Butchers and meat cutters, poultry preparers and related workers in industrial settings; and
    • Nursery and greenhouse workers. 
  • Employers hiring a replacement worker under the Agriculture stream are not required to re-advertise the vacant position when submitting a LMIA application for the replacement worker. This applies only if the replacement worker is in the same Job Bank economic region and the same occupation as the ones stipulated in the previous positive LMIA. 
  • The program is prioritizing and not waiving the minimum recruitment requirements for other occupations such as registered nurses, specialist physicians, general practitioners and family physicians, pharmacists, light duty cleaners, and transport truck drivers. 
  • Agriculture businesses will have until June 30, 2020 to apply for the Mandatory Isolation Support for Temporary Foreign Workers Program, a program providing up to $1,500 per TFW to assist employers with incremental costs associated with the mandatory 14-day isolation period imposed under the Quarantine Act.
  • As a brief reminder, employers must always pay for the TFW's private health insurance. Coverage must begin from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/territorial health insurance plan. Under no circumstances can an employer recover the health insurance costs from the TFW. 
  • Separately, due to significant concerns regarding the recent deaths and ongoing safety of Mexican TFWs working at farms, Mexico and Canada have reached an agreement wherein Canada committed to increased farm inspections and further supports for Mexican officials and workers, including identifying and reporting unsafe working conditions. The requirements on employers are strict and subject to audits by Employment and Social Development Canada. If found in contravention, the employer is subject to strict penalties, including fines of up to $1 million and a ban from hiring TFWs in the future.

What we are hearing
  • On June 22, 2020, Ontario announced its approach to reopening schools for the 2020-2021 school year. Unfortunately, the approach is as non-specific as the current Alberta plan.
  • In both Alberta and Ontario, the governments are planning for one of three scenarios
    • In-school classes resume with near normal operations while still following public health measures and directions;
    • In-school classes partially resume with modified routines, smaller class sizes, cohorting and alternative day or week attendance; or
    •  Continued, although enhanced, at-home learning.
  • The takeaway for employers is that even if there is an ability for employees to safely return full-time to the workplace as of September, childcare issues will likely continue to impair the ability of certain employees to do so and no clarity will be forthcoming until August 2020.

What we are saying
  • Ontario announced it would be launching a new privacy-first exposure notification app within the next two weeks called COVID Alert, a voluntary download that will give people who test positive for COVID-19 the option of anonymously alerting all other app users who have been close contacts in the last 14 days.
  • Although Ontario is stating that COVID Alert is a fast, secure and privacy-protected way to notify users of potential exposure, that is will never collect personal data or GPS location data and the app leverages global best practices to protect privacy, similar promises were made about the ABTraceTogether app launched in Alberta in early May 2020, which assurances were quickly disputed by privacy experts. 
  • A question that arises is whether an employer can force its employees to download and enable either COVID Alert or ABTraceTogether as a condition of employment. Please see our discussion on this topic in our email alert "ABTraceTogether: Contact Tracing All in the Workplace".
  • Employers should be cautious, however, as if the app is not as secure as represented by the developers. A further question arises as to whether the employer, by requiring an employee to download and enable the app, would be liable to the employee for any loss suffered by the employee if a hacker using the app to secure and misuse the employee's personal information.
  • Any employer who is considering making it a condition of employment that its employees download and use the app should discuss the possible legal issues arising from such a direction with legal counsel.

June 22, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As with the Canada Emergency Response Benefit (CERB), the Federal Government announced that the Canada Emergency Wage Subsidy (CEWS) would be extended to the end of August 2020. Although of some assistance to employers, there have been many complaints about the effectiveness of the CEWS, such as: 
    • The comparatively late announcement of the subsidy amount of 75% of employee wages up to $847 per week;
    • The delay of a full month from the start of the pandemic in providing details of the program to employers coupled with the 6-week delay in unveiling the application process; 
    • The program requirement that employees who had been laid off or furloughed due to the delay in rolling out the program were only eligible if they were rehired and were paid their retroactive pay in order to meet the eligibility criteria for the claim period; and
    • The requirement to show a 30% reduction in revenues.
  • The Government had estimated it would pay out $73 billion in CEWS applications. To date it has paid out $13.3 billion. We hope the Government will realize the difficulties its current eligibility requirements are causing and streamline the process.

What we are hearing
  • The Court of Queen's Bench of Alberta took another step forward in its effort to implement procedures to allow actions to move forward. As of June 24, 2020, the Court will commence scheduling half-day Civil Special Justice and Masters Chambers applications remotely via WebEx. These hearings have largely proceeded in the same manner as previously, with the exception being that counsel cannot rely on any evidence or case authority that was not provided in advance of the application. In some ways, this could be a positive as it may reduce the number of adjournments, which used to occur in Chambers at the last minute when a party passed up a case or document not previously disclosed to opposing counsel despite the requirements under the Alberta Rules of Court.

What we are saying
  • Consistent with the above efforts of the Court of Queen's Bench to create ways to allow for litigation to move forward without the need for in-person attendance, a recent decision of the Court addressed the issue of Questioning or examination by video-conference when one party will not agree to proceed in that fashion. 
  • In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 (CanLII), there had been an emergency injunction application heard after the declaration of the state of public health emergency in Alberta. The application had failed, but the Court directed the parties to "attempt to draw up the procedural roadmap for the reinstatement litigation". The parties were unable to do so, with the primary point of contention being whether Questioning on Affidavits should be deferred until the pandemic was over or whether they should proceed via video-conference. The main objection by one of the parties was that the process would be unwieldy, and as many of the applicants were over the age of 60, effectively managing the technology would be too difficult. 
  • The Court reviewed the 2010 changes to the Alberta Rules of Court and found that although there were recent decisions which contemplated the ability of parties to agree to conduct video-conference Questionings, there was to date no decision where the Court had directed a party to submit to such a procedure over its objection. Justice Lema did find a decision prior to the introduction of the new Rules in 2010 where the Court did direct completion of Questioning for Discovery via video conference. 
  • As such, and in light of the foundational Rules which direct the Court to augment the Rules as necessary to ensure the fair, just, and timely resolution of parties' claims, the Court determined it had the authority to direct the parties to proceed with Questioning on Affidavits by way of video conference and made such a direction. 
  • This decision is a clear indication that the Courts will not allow parties to sit on their hands and wait for things to return to normal. Counsel must embrace that the modernization of the litigation process has been accelerated by COVID-19 and a new way to practice is being created.

June 19, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we just reported in our last blog, the Alberta Government introduced Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act, 2020) on June 18, 2020. The bill proposes new amendments to legislation effective immediately that are deemed necessary as a result of the end of the public health state of emergency.
  • Important elements of Bill 24 relating to employers include:
    • Extending the temporary layoff period under the Employment Standards Code from120 days to 180 days, with the extension expressly applying to employees who are already on a layoff when the amendment was introduced;
    • Extending the unpaid job protected leave due to either infection, quarantine, or child or family care obligations arising from COVID-19 to August 2021; and
    • Increasing the number of children permitted in a cohort at a childcare facility from 10 to 20. This will provide employees who are being asked to return to work additional childcare options.

What we are hearing
  • Thus far, although discussion about whether masks should be mandatory when social distancing is not possible is ongoing, we have seen no indication that the local or provincial government intends to pass such a law any time soon. Thus far, the Chief Medical Officer for Alberta has been satisfied that the encouragement being given to Albertans to wear masks in certain situations will be sufficient, especially if infection and hospital rates stay stable.
  • Some businesses have implemented mandatory mask policies on their own. As a general rule, as business premises are private property, a policy to refuse service to anyone not wearing a mask is enforceable. However, business owners should be cognizant that if a person cannot wear a mask for health or religious reasons, refusing service may constitute discrimination under the Alberta Human Rights Act.
What we are saying
  • Questions are arising about the collection and use of customer information as businesses reopen in Alberta. This arises from attempts to avoid COVID-19 infections from occurring and to assist in contact tracing if an infection does occur. The Office of the Information and Privacy Commissioner of Alberta (OPIC) has recently provided guidance about considerations for businesses to keep in mind to ensure they comply with Alberta's Privacy Information Protection Act (PIPA).
  • Some key takeaways from the OPIC guidance include:
    • Advance warning that information is going to be collected should be provided in advance via the organization's website, social media, or posters on the door to the workplace;
    • Written or oral consent from the customer must generally be obtained;
    • Notice must be given about why the information is being collected, which can be written or oral;
    • Only information legitimately required by the business as part of its COVID-19 policy can be collected; 
    • Safeguards must be in place to ensure that the information collected is not disclosed, accidentally or otherwise, to other customers (such as through the use of one sign-in sheet for all customers) or employees who do not need the information; 
    • Any information collected cannot be used for any other purpose, such as adding the customer to a subscription list;
    • If information used in the past for a specific purpose, such as online booking, is going to be used as part of a COVID-19 policy, notice of this additional use must be provided;
    • The name of the organization's representative who can speak to the collection, usu, and storage of the information must be provided if requested;
    • Customers have the right to subsequently demand access to any of their personal information collected by the organization; and
    • The organization should consider how long it must retain the information for business or legal purposes. 
  • We recommend that legal counsel be contacted in advance to assist with or review an information collection strategy as part of a COVID-19 policy.

June 17, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • The Federal Government announced that the Canadian Emergency Response Benefit (CERB) is being extended by two more months. Although the Government is attempting to encourage people to look for jobs and to go back to work when possible to do so, it stated that it wanted to ensure the financial safety net of the CERB was not removed too early. The government stated that it will strengthen the attestation recipients must complete stating that they are actively seeking work. It will be necessary to monitor if they continuation of the CERB results in Alberta employers reopening their businesses and finding a shortage of available labour despite the unemployment rate of over 15%.
  • The Alberta Government introduced Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act, 2020) today. Among other things, this legislation extends the temporary layoff period from 120 days to 180 days. Though this legislation has just been introduced, and still must be passed, it will be effective today. 
  • Alberta's state of public health emergency, which had been in place since early March, lapsed on June 15, 2020. The declaration of a state of public health emergency under the Alberta Health Act permitted the Alberta Chief Medical Officer to issue a number of public health orders to be followed by Albertans to respond to the emergency. The declaration also granted the Government of Alberta the power to suspend, modify, or temporarily replace the application or operation of all or part of an enactment. The Government used this power to pass Ministerial Orders that modified such legislation as the Employment Standards Code and Regulations.
  • The Lapsing of the state of public health emergency does not result in the termination of the public health orders or the Ministerial Orders. The public health orders expressly state that they will remain in place until rescinded by the Chief Medical Officer. The power to grant the Ministerial Orders under the Alberta Health Act expressly allows the Orders to continue in effect for 60 days after the expiry of the state of public health emergency. Most of the Ministerial Orders state that they will remain in effect (unless extended by further Order) until the earlier of August 14, 2020 or 60 days from the date of the lapsing of the state of public health emergency unless expressly terminated earlier by the Government of Alberta.

What we are hearing
  • British Columbia has been slightly ahead of Alberta in the reopening of its economy and is slowly moving toward Stage 3 of its plan. It may be a good indication of what Alberta will experience as it moves through Stage 2 of its own strategy.
  • Key information from B.C. includes:
    • The number of new cases has stayed static for the past 10 days and has remained under 20 per day. Compare this with Alberta, which is still seeing new cases between 30 and 50 per day, although it has recently dropped to around 20; 
    • There have been no cases of COVID-19 connected to schools reopening on June 1, 2020;
    • Group gatherings remain limited to a maximum of 50 people with room for physical distancing, and this looks to remain a reality in the months to come; and
    • The next phase could be in late June or July, but will be entirely dependent on the number of new cases at that time.

What we are saying
  • With the widespread impact of the pandemic on Alberta businesses, historically unusual requests for changes to how business has been conducted may now seem understandable. This state of flux appears to have created a situation where cyber criminals are attempting to benefit. 
  • We have seen a proliferation of cyber fraud where criminals have hacked the email system of a supplier of goods or services. The hacker then mirrors an existing and legitimate email account and starts to send emails to clients advising that due to some issue, the company has had to change its banking information and that all future payments should be sent to a new bank account, which belongs to the hacker. The hacker also sets up a rule within the email account such that all replies to the fraudulent emails sent out by the hacker will be automatically be forwarded to the hacker and deleted from the legitimate email account. 
  • In some instances, because the email is coming from a legitimate email account, the request to direct payment to the hacker's bank account is successful, causing a loss. 
  • Businesses should be aware of this cyber fraud and direct employees to verify via telephone any request to change banking details. Businesses should also consult with their insurance brokers to discuss this and other new types of cyber fraud to ensure that they know the extent of existing coverage. To date, there is no case that allocates liability for a loss such as the above between the supplier whose email account was hacked and the customer who did not verify the change in banking information. 
  • If you require assistance in determining the extent an existing policy provides coverage against cyber security incidents or have questions regarding the sufficiency of your policy more generally, please contact someone in the McLennan Ross LLP Insurance and Risk Management Group.

June 15, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Although the general trend in Alberta of COVID-19 cases continues to be very positive, Alberta's Chief Medical Officer noted that the largest cohort with an increase in infections is people between the ages of 20 and 29. This may be due to processing, but likely also has some connection with this group being more likely to include front-line workers in the service industry or other similar industries with client facing positions. Likely, this group is also more social and perhaps willing to push the envelope on social distancing. 
  • In order for the launch of Stage 2 to be successful, Alberta's Chief Medical Officer noted that it is important Albertans continue to heed public health measures and directions, including social distancing. There appear to be inconsistencies in how this is supposed to be applied in different situations.

What we are hearing
  • The Government of Alberta has been continuing to send out guidance documents to help prepare businesses for their reopening following the implementation of Stage 2 of Alberta's relaunch strategy. With the move to Stage 2 being moved up by one week, the government website lacked a guidance document for many of the listed businesses and sectors that were reopening. That shortfall has been largely remedied with guidance documents now provided for many new areas, such as office buildings, public rallies, seniors centres and senior-serving organizations, and swimming pools and spray parks. 
  • We are already anticipating the potential of litigation based on an allegation that someone contracted COVID-19 from attending a place of business. As we have stated previously, a fundamental part of any defence to such a claim is being able to objectively show knowledge of, and compliance with, the applicable guidance documents for the business in question issued by the province.

What we are saying
  • Many employees understandably cancelled scheduled vacations once the state of public health emergency was declared. Similarly, those employees who continued to work have likely not taken vacation time either.
  • Currently, non-essential domestic travel is still not recommended. The border with the United States is essentially closed, and anyone returning to Canada after travelling internationally must quarantine for 14 days. Even those vacation destinations that can be reached by car either remain closed or have limited capacity. 
  • As such, many employees may continue to defer any vacation time and wait until later before using up accrued vacation entitlements. This may place a burden on employers who will be trying to balance many employees wanting to take vacation at the same time with business hopefully returning to normal and a desire to replace revenue lost in the second and third quarters. 
  • Under the Alberta Employment Standards Code
    • Employees employed for less than 6 completed years are entitled to 2 vacation weeks per year and after 6 completed years of service to 3 vacation weeks. Many employment agreements grant employees more vacation time than this statutory minimum.
    • Employees accumulate vacation time in one year and then are expected to use that vacation time in the next year. However, the employer and employee can agree to permit the employee to use the vacation time in the year in which it is accrued. 
    • It is up to the employer and the employee to agree on mutually satisfactory vacation time. If they cannot come to an agreement, section 38 of the Code gives the employer the ability to impose dates on the employee as long as the employee is provided with at least 2 weeks' written notice. Although as a matter of practice it happens often, conceptually the Code does not allow employees to carry over unused vacation time in respect to the minimum vacation entitlement. 
  • An employer faced with a situation where multiple employees are refusing to use their vacation time does have some options, but it is important to note that technically, the options only related to vacation time accrued in 2019 (and perhaps earlier). Forcing employees to take vacation time will depend on employer policies. Some options include: 
    • Using section 30 of the Code, create a schedule for when employees are to use vacation time. This schedule would allow the employer to ensure that each employee uses his or her 2019 vacation time while at the same time allowing the employer to be confident that it will always have enough staff in place. The legislation does not give an employee any right to dispute a vacation schedule imposed with sufficient notice;
    • Provide notice to all employees that they are not required to take their statutory vacation entitlement either in the year accrued or in the following year failing which the vacation time will be scheduled for the employee using section 38 of the Code. Employees would also be advised of the limited allotment of vacation time available for use and that the employer will be forced to refuse vacation requests if they result in less than full coverage; or
    • Offer an incentive, whether additional paid time off or some other enticement, to employees who take vacation time over the next 3 to 6 months. 
  • Please note that the options available to employer do not include a "use it or lose it" vacation policy where any unused vacation time relating to the minimum vacation entitlement under the Code is lost. Although it can happen in practice, there are compliance issues under the Employment Standards Code. In Ontario if an employer and employee agree that the employee was prevented from taking vacation time and the employee wants the cash value, the employer and employee can enter into an agreement to that effect. This agreement must then be submitted to the Ontario Director of Employment Standards for approval. Alberta does not have the same provision in its employment standards legislation as Ontario, however, Albertan employers can have a use it or lose it policy in respect to any vacation entitlement beyond the minimum requirements of the Code.

June 12, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Earlier this week, the Government of Alberta announced that the province is advancing to Stage 2 of its relaunch strategy today, which is a week earlier than originally expected. This will apply to the entire province, with only one region under a "watch" status but still moving to the next stage without restrictions. Stage 2 allows additional businesses and services to reopen and resume operations, however, physical distancing and public health guidelines remain in place.
  • With the move to Stage 2, indoor events can now host up to 50 people and outdoor events can have up to 100 attendees. The previous caps on attending church, restaurants and bars, casinos, and bingo halls have been removed, although these facilities must still adhere to the public health measures. 
  • Stage 2 also allows more flexibility with respect to expanding cohort groups - small groups whose members do not need to always stay 2 metres apart.
  • Still not approved are social gatherings in excess of the above numbers, regular in-school classes, major festivals, concerts and sporting events, nightclubs, amusement parks, large conference and trade shows, and other large events. Non-essential travel outside of the province remains not recommended and will stay so until Stage 3. 
  • The moving up of Stage 2 has resulted in the public health guidance that was previously provided for businesses at Stage 1 being incomplete in some cases for Stage 2, although additional guidance is being posted daily. Employers are recommended to continue to monitor the Government of Alberta's COVID-19 webpage for guidance applicable to their business.

What we are hearing
  • One of the biggest issues that continues to face employers and employees is the lack of certainty around childcare. Some summer school, childcare, and day camps have been approved as part of Stage 1 and capacity restrictions will be eased to some degree at Stage 2. However, the availability of childcare will undoubtedly continue to be in short supply through the summer, and the province's direction about school and childcare options in the fall remains unclear. The Government of Alberta has signalled its preference for K-12 learning to return to the classroom in the fall, but a final decision is not expected until August 1. These continuing childcare challenges may make it difficult for employers to secure commitments from employees to return to the workplace during Stage 2.

What we are saying
  • We are getting inquiries from clients who will be reopening their workplaces and are trying to best protect against liability arising from employees contracting COVID-19 at work. The nature of the inquiry is often whether an employer can ask an employee to sign a waiver before being permitted to return to work. The short answer is no.
  • The most effective form of protection for an employer is to ensure the following are in place:
    • Have a clear COVID-19 sick policy that reiterates the Government of Alberta's public health directions regarding travel, symptoms, or being in the proximity of someone who is subsequently diagnosed as having COVID-19.
    • Follow the workplace screening, physical distancing, sanitation, and PPE requirements and guidelines issued for businesses in your industry by the Government of Alberta for Stage 1 and 2. 
    • Ensure and document that these policies have been clearly communicated (signed off as being reviewed and understood by each employee) and then strictly enforced. 
  • An employer cannot guarantee that an employee will not contract COVID-19, but if public health and OHS guidelines are diligently followed, this should be a full response to any claims. Employers with WCB insurance im place may also enjoy statutory immunity from civil claims made by workers who contract COVID-19 in the workplace if the infection is considered a workplace injury. 
  • Even if an employee would sign a waiver and was given consideration for doing so, such a waiver would be of dubious practical benefit given that employers cannot contract out of their statutory duty to provide a safe work environment.

June 8, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Last week, the Government of Canada announced assistance for municipalities facing a financial crisis due to COVID-19. First, the Government announced that it would accelerate $2.2 billion in annual federal infrastructure funding for communities. Funding will be delivered in one payment this month. These funds were promised to municipalities as part of last year's federal budget. The intention is to fund infrastructure projects to help restart local economies. Projects could include access to high-speed broadband internet, improvements to water and road systems, and the building of cycling and walking paths.
  • Municipalities are facing budget deficits due to continuing or increased demand for public services such as local police, ambulance and fire service, local public health, municipal waste collection and social services, while experiencing decreased revenues from user fees (such as public transit fares) and deferred or lost property or business taxes. The Federation of Canadian Municipalities (FCM) had already predicted a collective shortfall of at least $10 billion for its members. Despite the announcement from the Federal Government of the acceleration of funds already budgeted, that shortfall has not been reduced. 
  • As the hope is that the current revenue and expense issues facing municipalities are temporary and will return to normal once the pandemic has passed, providing short-term liquidity to municipalities, which cannot otherwise run a deficit, may be a simple and cost-effective solution for the Federal Government.
  • On June 5, 2020, the Federal Government also announced that it would be providing an additional $14 billion to provinces and territories to help safely restart their economies. Provinces were quick to support the concept but were critical of the details. The biggest issue appears to be that the Federal Government wants to control how the funds are spent, calling the assistance "targeted" and requiring the funds be used for programs and projects pre-approved by Ottawa. One such item is that the provinces legislate a requirement that employers provide their employees with 10 paid sick days, something we were critical of in an earlier blog post.
  • The provinces were also critical of the amount of assistance being provided, including its allocation on a per capital basis, as opposed to where COVID-19 had the biggest outbreaks and economic impacts.

What we are hearing
  • The Government of Alberta announced on June 5, 2020 that it was introducing legislation to prevent commercial landlords who refused to take advantage of the Canada Emergency Commercial Rent Assistance (CECRA) from evicting business tenants impacted by COVID-19. CECRA provided forgivable loans to commercial landlords if they reduced their tenants' rent by 75% for April, May, and June. As we discussed here, because the program was voluntary and placed restrictions on landlords' rights to evict tenants, some landlords elected not to participate in the program. Following in the steps of British Columbia, Alberta is attempting to further protect small businesses struggling to pay rent as a result of drastically reduced revenues. 
  • Premier Kenney also announced a one-time payment of up to 15% of monthly sales revenue, with the maximum amount capped at $5,000, for employers with 500 or fewer employees forced to close or curtail their operations due to the pandemic. The intention is that employers can use this money for start-up costs like purchasing inventory, acquiring personal protective equipment, and bringing back staff.

What we are saying
  • As we have been stating consistently, we envision a large volume of COVID-19 related litigation commencing in the next few months following the lifting of the state of emergency. The anticipated volume of claims will undoubtedly be increased by claims that are either spurious or may involve situations where a defendant employer may have absolute statutory immunity, such as with claims for workplace injuries that are the exclusive jurisdiction of the Workers Compensation Board.
  • With the Alberta courts already struggling to determine how to provide full service while resolving the large backlog of court dates that were postponed due to the state of emergency, we will be curious how these types of frivolous cases will be dealt with, and whether the courts will assist in separating these claims from legitimate ones.

June 5, 2020

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team
What we are seeing
  • Premier Ford from Ontario announced that despite the recent increase in COVID-19 cases, he is focused on moving to Stage 2 of Ontario's reopening strategy, which will result in the opening of more workplaces (such as some service industries and additional office and retail workplaces), public spaces and will allow for some larger public gatherings. 
  • Ontario's top criteria for further easing its semi-lockdown is a consistent decline over a two to four-week period in the daily number of new cases. Cases have not declined consistently in three weeks since the implementation of Stage 1 of Ontario's strategy.
  • Ontario's health minister is less confident and has stated the public health officials want to delay moving to Stage 2 until there is a steady reduction in the number of daily new cases.
  • The City of Toronto is actively encouraging the city's other major downtown employers and post-secondary institutions to follow its lead and continue to support employees, where possible, to work from home until September at the earliest. This is in part to keep pressure off of the Toronto transit system. Once large employers start to have employees return to their offices, there is an agreement that the return will be phased in gradually with staggered start times, where possible, to help maintain physical distancing.

What we are hearing
  • As we have discussed previously, we anticipate pressure from the Courts for parties to litigation to settle minor issues between themselves and use non-traditional methods to try to resolve the underlying dispute without taxing the Court's limited ability to hear in person contested applications and trials. 
  • On June 4, 2020, the Court formally announced that it would be scheduling and hearing non-binding judicial dispute resolutions (JDRs) in June, July, and August. The Court has stated that it will only schedule JDRs in actions where both parties are represented by legal counsel and all agree to proceed via WebEx video and audio. As either an incentive or a warning, the Court has also indicated that there may be limited availability for JDRs in the Fall of 2020, which suggest that the Court will be using its resources to schedule trials which have been forced to be adjourned since March, 2020. 
  • Although we are confident that the Court will apply the same legal principles and standards of proof in contested applications, we also believe that the Court will likely inquire with counsel what steps were taken by them to resolve issues in light of the Court's announcements and warnings. We are not suggesting that any party should accept an improvident settlement, but having evidence of good faith efforts to resolve issues may be beneficial.

What we are saying
  • Employers are justifiably concerned about labour costs once they are permitted to more fully reopen during Stage 2 of Alberta's relaunch strategy. It is unclear how quickly customers will return to their old habits and forecasting the appropriate staffing levels will be challenging.
  • One solution is to hire casual, on-call employees who only work when needed. Two issues which have been asked about are (a) the ability of an employer to adjust casual employees' hours based on business need and what limitations there are on those adjustments, and (b) what is an employer's notice obligation to casual employees if the employer decide to terminate the employment relationship. As with most such issues, the key to protect the employer is a properly drafted employment agreement, which likely need be nothing more than a 1 to 2 page offer letter.
  • An employer can hire an employee to work variable hours depending on need. The employer must still comply with the sections of the Employment Standards Code which regulates hours worked.
    • Section 17(1) of the Code has historically required an employer to notify employees of their start and end time by posting a notice or some other reasonable method. Section 17(2) requires an employee to provide notice of changes to shift schedules. Prior to the temporary changes to the Code necessitated by COVID-19, an employer had to provide at least 24 hours' written notice of changes to shift times. The temporary changes to the Code, which are set to expire in mid-August, allowed an employer to change shifts schedules on less than 24 hours' notice if notice was provided as soon as reasonably possible in the circumstances. 
    • For on-call workers, as long as the employee can elect to work or not to work for a temporary period, shifts do not need to be posted in advance. However, once an employee is called into work, the employee must be paid for a minimum of three hours.
  • For terminating casual employees, the offer letter should contract out of requiring common law notice of termination and should state that the employee will only receive his or her entitlement under the Code. For an employee who has been employed for less than three months, or who has the option to work or not to work for a temporary period, no notice is required. For all other employees, if they are employed for longer than three months but less than two years, only one week notice or pay in lieu of notice would be required.
  • Experienced employment counsel should be consulted to properly advise an employer on its hours of work requirements and to ensure the offer letter properly limits the employer's liability when terminating excess staff.

June 3, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we mentioned here on May 29, 2020, the Government of Alberta announced that the state of public health emergency under the Public Health Act, will not be renewed. In contrast, the Legislature of the Government of Ontario voted on June 2, 2020 to extend its provincial state of emergency to June 30, 2020. This decision came after there were an additional 446 cases of COVID-19 reported by the Ministry of Health. These increases are due in part to an error made in flagging positive cases by two Toronto area hospitals, leading to thousands of Torontonians ignoring social distancing guidelines and gathering in close proximity together in local parks the previous weekend.
  • The extension of the state of emergency may impact the opening up of the Ontario economy, which would benefit all Canadians. Although Ontario has said it still intends to proceed with plans to implement a regional phased approach to reopening, the large cluster of cases in the Greater Toronto Area will almost certainly inhibit the ability of that area to do so.

What we are hearing

  • A key part of allowing Albertans to return to work and to an effective relaunch of the economy is the ability of employees to find childcare. Stage 1 of Alberta's relaunch strategy allowed licensed daycare and out-of-school care programs to reopen as of May 14, 2020. Preschools were permitted to begin reopening as of May 28, 2020. 
  • Unfortunately, the limitations placed on daycare and preschool facilities may make reopening until the fall uneconomical. According to the Province's guidance for these facilities, which can be found here, childcare can only operate in cohorts of 10 people, including staff and children. Cohorts are directed not to mix with other cohorts or be within the same room/space at the same time, including pickups and drop-offs, mealtimes, playtime, outdoor activities, staff rooms, nap time, etc. Although multiple programs can be offered in the same building, each must have separate entrances. Even if these childcare operations can figure out how to meet expenses with reduced enrolment, many have stated they could not do so in the short-term so they will not open for June. 
  • As more and more employers are requesting employees return to the workplace, accommodation of childcare needs will continue to be necessary if other options are not available.

What we are saying
  • The Court of Queen's Bench of Alberta made another announcement regarding its ability to hear contested interlocutory applications effective June 3, 2020:
    • The Court will commence hearing regular Masters Chambers applications (with an anticipated length of 20 minutes or less) remotely via WebEx video and audio. In Calgary and Edmonton, regular Masters Chambers will be held at 10 am every Court sitting day, Tuesday through Friday. In regional centres, Masters Chambers will be available on specified sitting dates. 
    • The Court will also commence hearing regular Civil Justice applications remotely via WebEx video and audio in Edmonton and Calgary. Regular Civil Chambers will continue to be held at 10 am every Court sitting day. 
  • To secure a hearing date, parties are first required to view available sitting dates online. Once parties have determined an appropriate (available and alternate) sitting date, the parties contact the Clerk's Office by sending the draft Application and Form of Order, along with their proposed available and alternate date in accordance with the procedures outlined on the Court's website. 
  • Although this announcement signals that interlocutory matters can be heard immediately, subject to availability, Masters Order #4 granted by the Chief Justice of the Court of Queen's Bench is still in effect. Paragraph 10 of that Order states that "[a]ll filing deadlines under the Alberta Rules of Court, including Rule 13.41(4), are suspended until June 26, 2020 with the exception of those Rules applicable to the commencement of proceedings, including originating applications.
  • It therefore appears that applications that were contemplated prior to the declaration of the state of emergency and the closing of the Courts will be able to be argued, but applications to compel parties to complete steps required under the Rules or to seek relief due to a party missing a filing deadline will not yet be available.

June 1, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
What we are seeing
  • The Government of Ontario enacted Ontario Regulation 228/20 on May 29, 2020 which introduced temporary changes to Ontario's employment standards legislation, the Employment Standards Act, 2000. The Regulation applies to the "COVID-19 period" which is defined as March 1, 2020 to 6 weeks after the date that the state of emergency declared in Ontario is terminated or disallowed.
  • The key impact of the Regulation is that it expressly excludes a temporary reduction or elimination of an employee's hours of work by the employer for reasons related to COVID-19, or a temporary reduction in an employee's wages by the employer for reasons related to COVID-19, as the basis for a constructive dismissal claim under the Act. The Regulation further directs that any complaint filed under the Act predicated on a temporary reduction or elimination of an employee's hours of work by the employer or a temporary reduction in an employee's wages by the employer shall be deemed not to have been filed if the temporary reductions occurred during the COVID-19 period and were for reasons related to COVID-19.
  • Section 6 of the Regulation also addresses "layoffs" and provides that a person who experiences a reduction or elimination in hours or reduction in wages due to COVID-19 is not considered to be on a layoff. Thus, the Act's termination deeming provisions addressing when a temporary layoff becomes a deemed termination, which would trigger entitlements under the Act, do not apply.
  • It is important to note that the Regulation has no application to Alberta employees and no similar changes were made to the Alberta Employment Standards Code. However, while these changes do not supersede the common law, they suggest a general acceptance that hours reductions related to COVID-19 are a reasonable change and may not be a constructive dismissal at common law. 
  • We have been consistent in our advice that it is unclear how the courts will treat reductions in hours or wages for employees due to legitimate business imperatives created by COVID-19. It is entirely possible that courts will follow the lead of the Regulation and find that an employer's decisions to implement temporary changes to hours or wages in order to survive would not trigger a constructive dismissal claim for affected employees.

What we are hearing

  • In advance of the province's anticipated transition to Stage 2 of the Government of Alberta's relaunch strategy, the Government announced that Albertans could obtain a COVID-19 test without being symptomatic, with residents able to make an appointment by filling out the province's online assessment tool
  • This expansion of testing availability may lead some employers to consider requiring employees to obtain a COVID-19 test before being permitted to return to the workplace or perhaps to be tested weekly. Whether such requirements are permissible, and whether an employee refusing the test can suffer negative consequences, has not been addressed to date as, until now, elective testing was not possible. 
  • We expect, like most legal issues, that an employer's ability to force employees to obtain a COVID-19 test will be very much fact dependent. 
    • The website for Alberta Occupational Health and Safety (OHS) does not address the issue. As opposed to when an employee presents with symptoms or has been in the presence of someone with COVID-19 and there is a legitimate need to test to ensure that the employer is providing a safe workplace for its employees, OHS does not provide the same direct guidance, and requirements apply more generally. 
    • The website for the Alberta Human Rights Commission does contain a COVID-19 FAQ sheet, but it does not address this specific situation. The sheet generally states that employers are required to consider flexible options for employees, consider requests for accommodation in good faith, and be flexible and consider not overburdening the health care system.

What we are saying
  • As we summarized on May 29, 2020, the Chief Justice of the Court of Queen's Bench of Alberta reported in an open letter to members of the Law Society of Alberta and the Alberta Branch of the Canadian Bar Association that a return to normal operations would not be occurring any time soon. Although a limited number of Queen's Bench courtrooms will be 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), there was no information regarding when civil trials would resume. 
  • In comparison, other jurisdictions appear to be returning to normal operations at a much quicker pace:
    • In British Columbia, civil trials set to begin on or after June 8, 2020 are currently scheduled to proceed as normal. Interlocutory applications that were already scheduled will be proceeding via telephone conference. The B.C. Supreme Court still does not appear to be accepting new interlocutory applications. 
    • In Ontario, urgent matters can still be argued in person, with criminal matters scheduled to return to normal operations on July 6, 2020 and civil matters tentatively set to return to normal operations in September.  
    • In Saskatchewan, non-urgent interlocutory applications will be heard by telephone commencing on June 1, 2020, with additional application dates added in order to address the various applications adjourned because of COVID-19.
  • Although each province is dealing with its own specific circumstances, we hope that a more expedited strategy can be developed to allow civil matters in Alberta to move forward as quickly and fairly as possible.