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.