July 8, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • As we commented in our e-Alert sent out on July 7, 2020, the Government of Alberta has just introduced Bill 32, Restoring Balance in Alberta's Workplaces Act, 2020, which contemplates changes to improve the Labour Relations Code and Employment Standards Code, and gives a lift to employers as they generate employment in the wake of COVID-19. This Bill addresses many of the problems encountered by employers flowing from the 2017-18 changes to the Labour Relations Code and Employment Standards Code passed by the NDP government at that time. 
  • The changes to the Employment Standards Code include a more thoughtful and workable structure for averaging arrangements with employees who work varying work schedules and compressed work weeks, providing the employer with more time to pay a departing employee his or her final earnings, extending the temporary layoff period, removing prohibitively expensive group termination provisions, expressly permitting recovery of amounts paid to an employee in error or vacation pay provided to a departing employee in advance of it being earned, changing hours of work and rest periods, and streamlining the process for employers to apply for permitted variances to the Code
  • There were two required changes that were made obvious by the COVID-19 pandemic: 
    • A permanent change to the layoff provisions of the Code to extend the maximum initial layoff period from 60 days to 90 days within a 120-day period (although temporary amendment allowing a COVID-19 related layoff to be up to 180 days is still in place); and
    • A return to the old rules with respect to group terminations, with employers having to provide 4 weeks of notice to the Minister of Labour only for a group termination of 50 employees or more, with the group termination notice requirement being removed from the individual termination notice or pay in lieu of notice requirements. 
  • There are numerous changes to the Labour Relations Code, including tightening the conditions for remedial certification and first contract arbitration, removing arbitrary time limits in certification and revocation applications, allowing early renewal of collective agreements, removing arbitrator powers to ignore grievance time limits, providing a financial disclosure obligation to unions, requiring worker opt-in for union dues related to political and social causes, changing many aspects of the Code relating to the construction industry, and adding a reverse onus to unfair labour practice complaints against unions and reducing the application of reverse onus in complaints against employers. 
  • McLennan Ross is hosting a webinar on July 22 to discuss these legislative changes. Information on the webinar can be found here

What we are hearing
  • The Alberta Courts issued a notice to the profession and the public requiring face masks to be worn in all public places in any courthouse as well as in the courtroom when directed to do so by the presiding Judge or Master. Children under two years of age, persons with a medical condition or disability that inhibits wearing a face mask, and persons who are unable to place or remove a face mask without assistance are exempt from these requirements. This notice is a clear indication that the courts intend to increase the number of matters being argued in person as opposed to continuing to focus on remote hearings. 
  • On July 7, 2020, the Court of Queen's Bench announced that subject to availability, it would attempt to hear short Family, Civil, and Commercial trials or other Family, Civil, and Commercial matters via WebEx video and in-person. The Court had previously announced that it would be using this time to hear short, judge-alone Criminal trials, but it is opening up the time to these other matters if there are not enough short Criminal trials to use up all of the available court time.

What we are saying
  • With the workplaces reopening, questions are being asked about how the Workers Compensation Act applies to an employee contracting COVID-19 when it is not clear if the infection occurred in the workplace.
  • The WCB issued a fact sheet for employees in March 2020 that stated "[L]ike any other claim, WCB-Alberta must determine whether your exposure to the disease arose out of the course of your employment and was caused by an employment hazard (in this case, workplace exposure to the virus)." WCB has not updated this fact sheet and does not address how difficult it will be for an empoyee to prove that he or she contracted COVID-19 in the workplace. This will place a burden on employers as they reopen, for if an employee has COVID-19 or has to self-quarantine due to a concern about infection, that employee may be entitled to use paid sick leave or short-term disability coverage, which some employers self-fund.

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