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.

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