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: 

Recall

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.