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.

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