McLennan Ross Update for Friday

 By McLennan Ross Labour & Employment Team

What we are seeing

• On August 20, 2020, the Government of Canada announced further economic support for unemployed or under-employed workers. A link to the official news release can be found here.
• Details from the announcement include:
• A further 4-week extension of the the Canada Emergency Response Benefit (CERB) thereby increasing the total benefit available to 28 weeks from 24 weeks.
• A transitioning from the CERB to a “more generous” Employment Insurance (EI) program which will expand eligibility, implementation of a benefit rate of $400 per week, and an accessibility period of 26 weeks.
• The announcement of three new benefits:
• The Canada Recovery Benefit (CRB), which will provide $400 per week for up to 26 weeks to workers who are self-employed or are not eligible for EI, who still require income support, and who are available and looking for work.
• The Canada Recovery Sickness Benefit (CRSB) will provide $500 per week for up to two weeks for workers who are sick or must self-isolate for reasons related to COVID-19.
• The Canada Recovery Caregiving Benefit (CRCB) will provide $500 per week for up to 26 weeks per household for eligible Canadians unable to work because they must care for a child or adult dependent.
• Employers were advised that there would be a freeze of EI insurance premiums for two years to delay (but not eliminate) the financial impact on businesses who ultimately will have to fund these enhanced benefits.

What we are hearing

• As the federal government prorogues Parliament, there is talk of much more expansive and expensive social programs and the “decarbonization of the economy”. It is worth questioning how government can afford such additional programs if not accompanied by significant economic growth; especially in Alberta where employers are wondering how much more the Alberta economy can take.

What we are saying

• As lawyers try to predict how courts and tribunals will factor the pandemic into it is decision making, a recent Alberta Labour Board decision, although very much fact specific, suggests it may not be considered unique. This would thereby justify variations in the application of legal principles but will be classified as giving rise to economic uncertainty no different than other recessions in the past.
• In Canadian Union of Public Employees, Local 2559 v Children First: Community Childcare Network Society, 2020 CanLII 53305 (AB LRB), CUPE applied to be the certified bargaining agent for a unit of employees of the Society. One of the objections to the application advanced by the Society was that the Board should not certify a bargaining agent during the COVID-19 pandemic, as the Society faces a difficult and uncertain economic future, and any bargaining relationship may be doomed to fail. The Society suggested that the current circumstance was historically unique and therefore justified an equally unique exercise of discretion.
• The Society’s argument was assertively rejected by the Board and, in doing so, the Board commented “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”
• Although certainly not precedent setting in terms of how all courts will interpret the impact of COVID-19 on matters before it, it is a cautionary tale that employers should not expect the courts to be overly sympathetic in labour and employment disputes. 

McLennan Ross Update for Monday

 By McLennan Ross Labour & Employment Team

What we are seeing

• We have previously covered in great detail the various Alberta legislation and orders that amended statutory limitation periods due to the COVID-19 pandemic. Most specifically, the Ministerial Order 27/2020, which delayed certain limitation periods from March 17 to June 1, 2020. A link to that order is here. 
• On July 27, 2020, the federal Bill C-20 received Royal Assent and enacted the Time Limits and Other Periods Act (COVID-19) that similarly addresses time limits included in federal legislation, including the Divorce Act, rules for civil cases in the Federal Court, and some key regulatory matters. The suspension is retroactive to March 13, 2020 and extends the time limits for a maximum duration of 6 months (until September 13, 2020):
• The Act automatically suspends time limits established under federal legislation for starting a civil legal proceeding or doing something in a civil legal proceeding from March 13, 2020 to September 13, 2020, unless an earlier date is fixed by order; and
• Federal ministers may extend or suspend time limits and other periods in specific federal legislation for which they are responsible.

What we are hearing

• Bill 24, the Pandemic Response Statutes Amendment Act, received Royal Assent and came into force. The Bill retroactively (from May 15, 2020) amends three Acts, the Personal Directives Act, the Powers of Attorney Act, and the Wills and Succession Act to permit remote witnessing and execution of estate planning documents, when legal services are provided by a lawyer and all parties are able to communicate in real time by video conference. The amendments also permit estate planning documents to be signed in counterpart. The amendments only stay in force until August 2022 unless renewed. We expect the Government of Alberta will consult with legal practitioners in the area to measure the impact of this amendment to see if remote witnessing and execution should be allowed permanently. A copy of Bill 24 can be found here.

What we are saying

• As we have discussed previously, the Government of Canada has announced that it will not be extending the eligibility period for the Canada Emergency Response Benefit (CERB) beyond 24-weeks. Employers will soon be facing situations where they must recall employees who may have been the subject of a temporary layoff or risk the employee looking for replacement income elsewhere and not being available to return once the employer has a need to expand the workforce. A question that has arisen is whether an employer can apply for and receive the Canada Emergency Wage Subsidy (CEWS) for amounts paid by the employer to an employee who is not actively at work. From a review of the online information published by the Government of Canada, the answer appears to be yes.
• The Government of Canada  published a Frequently Asked Questions (FAQ) web page for the CEWS, access the link here. One question answered on the FAQ is whether an employer can claim the CEWS for an employee that the employer hires back and pays retroactively, presumably without the employee having supplied services during that retroactive period. The FAQ states that “[i]t is possible for an eligible employer to hire back eligible employees and pay them retroactively in respect of a claim period, to be able to qualify for the wage subsidy.”
• The Government of Canada has also published a backgrounder, link here, for the recent changes to the CEWS program that states that certain employers can receive the CEWS for furloughed employees, for which benefits would be adjusted to be aligned with the CERB amount received by the employee.

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing

• The Alberta Ministerial Order 18.2020, which modified layoffs, group terminations, scheduling notice, and Personal and Family Responsibility Leave, expires on August 14, 2020. In its place, certain parts of Bill 32 relating to the Employment Standards Code take effect on August 15, 2020. These new provisions include the following:
• the new temporary layoff provisions, under which temporary layoffs do not become terminations until there are one or more periods exceeding 90 days of layoff with a 120-day period. Note: the new layoff provisions that no longer require notice of layoffs do not become effective until November 1, 2020;
• a continuation of the COVID-19 layoff provision, under which a layoff does not become a termination until more than 180 consecutive days;
• the permanent changes to group termination, which require 4 weeks' notice to the Minister of Labour only where an employer is terminating 50 or more employees at a single location within a 4-week period;
• the changes in respect to variances and exemptions.
• Other changes to the Employment Standards Code introduced in Bill 32 do not become effective until November 1, 2020. This includes changes in respect to the timing of termination payments, the new provisions on deductions from employee pay, changes in respect to rest periods and scheduling, the new averaging arrangements, the new calculation for holiday pay, and the removal of layoff notice. 

What we are hearing

• Generally, mask bylaws are becoming increasingly commonplace across Alberta. These bylaws regulate the use of masks in public places, but generally do not apply to private areas such as the workplace, unless the public can access the workplace, even if required to pay an entry fee to do so. 
• That the bylaws do not apply to private workplaces is logical. An employer has the legal obligation to provide a safe workplace for employees. The Chief Medical Officer of Alberta has provided numerous and detailed guidance documents for businesses of all types in Alberta that have been permitted to reopen. As the employer can and must control its workplace, it has the ability, unlike in a public setting, to mandate social distancing and the required cleaning and disinfecting.

What we are saying

• It has now been over 140 days since the public health state of emergency was declared in Alberta and employers began issuing notice of temporary layoff under Sections 62 to 64 of the Alberta Employment Standards Code. As the economy in Alberta remains poor, employers are considering what to do once the 180-day maximum temporary layoff period for COVID-19 related layoffs approaches.
• Employers are concerned about not being economically able to recall all employees, yet do not want to terminate the employment relationship, lose the service of some employees when the business does develop a need for them, and also have to provide a severance package. To avoid a termination and continue to take advantage of the layoff provisions, we have been asked how long an employee must be actively working after being recalled from a temporary layoff before a new layoff notice can be issued. 
• Section 62 of the Employment Standards Code used to permit layoffs up to 60 days without qualification, and the concern about abuse of the provision was identified in a 2003 Court of Queen's Bench decision that considered Sections 62 to 64 as they were written. The Court commented on the provisions being potentially abused by employers to continually recall and layoff employees to avoid having to provide notice of termination or termination pay; however, the Court did not opine on whether such actions would be contrary to the legislation. 
• On appeal, the Court of Appeal recognized that the legislation as written permits a temporary layoff "and the employee has no assurance that if he or she returns to work for a period of time, for example 10 days, that the layoff will not recommence thereafter", which seems to again identify the potential of back to back layoffs without commenting on the propriety of such actions by employers. 
• Perhaps to address this concern, Section 62 to 64 were amended in 2017. One of the changes was to limit the permitted layoff period from 60 days to less than "one or more periods exceeding, in total, 60 days within a 120-day period". The 2017 amendments allowed for an extension of the layoff period, but only if the employer paid the employee "wages or an amount instead of wages" or "makes payments for the benefit of the laid-off employee in accordance with a pension or employee insurance plan or similar plan". The recent amendments to the Code resulting from the passing of Bill 32 keeps the provision the same as the 2017 amendments. However, it increases the permitted lay off period from 60 days to 90 days within a 120-day period. 
• The temporary COVID-19 amendment to Sections 62 to 64 of the Code are analogous to the pre-2017 provisions as it states that a layoff can last up to 180 days and is silent about how long an employee must be actively employed before being eligible to be laid off again. As such, it is arguable that so long as the layoff continues to be related to COVID-19, an employee can be temporarily laid off again after a short period of active employment. As much as the court decisions commented on such actions as being a potential abuse of the legislation, neither decision said such use would be unlawful and neither were considering the legislation in the context of a pandemic. Further, the Alberta Government must have been aware of these two decisions and the basis for the 2017 Code amendments, as exemplified by the wording of the further amendments in Bill 32. 
• As a result, subject to the second layoff continuing to be genuinely caused by the impact of COVID-19, the legislation appears to allow for a new temporary layoff after a short return to active employment. Employers need to be mindful that doing so may appear artificial and could lead to a challenge by the aggrieved employee. It is also possible new layoffs could be determined to fall under the normal layoff provisions instead of the COVID-19 layoff provisions. 
• We again caution that it is still unclear whether a temporary layoff under the Code would constitute constructive termination at common law, which we discussed back in March, 2020 here. 

McLennan Ross Update for Monday

 By McLennan Ross Labour & Employment Team

What we are seeing

• Alberta's unemployment rate dropped in July to 12.8%, although it remains the second highest rate in the country. Further, 8,200 businesses in Alberta shut their doors in March 2020, followed by another 11,300 businesses in April. These statistics do not account for contractors or other self-employed individuals who could not find work during the same time period. According to the Canadian Federation of Independent Businesses, Alberta has the highest percentage of small businesses still at risk of closure anywhere in Canada, with the estimates from 8% to as high as 25%, and the mid-range estimate being 19%.
  

What we are hearing

• It has been confirmed by two different media sources that Alberta will be discontinuing the use of its mobile tracing app, ABTraceTogether, which was first unveiled on May 1, 2020 and will switch to a national app, the COVID Alert exposure notification application. Both apps use Bluetooth technology to determine if a user has come into contact with someone who has been diagnosed with COVID-19. If so, the user would be notified so that he or she could self-isolate and prevent further spread of the virus. AHS will be providing details regarding how the national app will be adopted in Alberta.
  
• On July 31, 2020, the Office of the Privacy Commissioner of Canada (OPC) and the Office of the Information and Privacy Commissioner of Ontario (IPC) issued a news release confirming that they had concluded their joint review of the COVID Alert app and support the voluntary use of the app. Although some disclosure of personal information was possible, it was a permissible risk in light of the greater health issues at stake and the fact that use of the app is voluntary.
  
• In a separate statement, IPC reiterated that it had requested the Ontario Government to issue strong public messages encouraging businesses and employers to respect the voluntary nature of COVID Alert by not compelling individuals to use the app. This statement seems to make it clear that if any employer compels the use of the app by employees, it may be open to a viable complaint under the privacy legislation. Based on previous statements from the Alberta Privacy Commissioner, we expect a similar approach will be taken in Alberta.
  

What we are saying

• As Alberta's daily infection rate continues to average over 100 per day, the average number of new cases per million citizens is double that of Ontario, the Chief Medical Officer is cautioning against Alberta becoming complacent about following public health guidance of masks, social distancing, and hygiene, and is blaming the recent spike in cases on factors other than decreased vigilance. However, the number of deaths from COVID-19 and required use of ICU remain low.
  

McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

What we are seeing

• The Government of Canada has confirmed that the Canada Emergency Response Benefit (CERB) will not be extended after applicants have reached the current maximum benefit entitlement or the final eligibility period ends on September 26, 2020. Although economies across the country are slowly reopening, the Government has stated that it believes additional financial assistance beyond Employment Insurance will be required and is looking at offering a parallel benefit, which would contemplate some level of governmental assistance in addition to income available to be earned from part-time or gig economy jobs.
  
• The Government of Canada had previously announced that the extension and expansion of the Canada Emergency Wage Subsidy (CEWS) program will continue until December 19, 2020, which we discussed here. The expansion of the program has been well received. However, some caution has been expressed regarding the complexity of the calculations to determine if a business qualifies for the subsidy and the significant penalties if the subsidy is received in error. A backgrounder to assist in the calculations can be found here.
  

What we are hearing

• The Government of Alberta updated its re-entry plan for K to 12 students on July 21, 2020 by requiring students from Grades 4 to 12 to wear masks where physical distancing cannot be maintained, including on school buses. The Government will distribute 2 reusable masks to each student and staff member, with school staff also being provided with a reusable face shield. The Government will also be providing hand sanitizer, contactless thermometers, and staff testing.
  
• Although this update to require masks has been welcomed by staff and parents, concerns are still being expressed about whether children will be 100% safe attending school. With respect, that is not the measure that should be used. Not reopening schools puts a thumb on the economy and prevents some businesses from returning to near normal operations. Further, it is often those frontline workers who are most at risk that require schools to be reopened so that they do not have to stay at home not getting paid, or direct a percentage of income to pay for childcare.
  
• We have no doubt that the Government of Alberta will be vigilant in monitoring the statistics once schools reopen to ensure that children returning to school are no more at risk than going to the grocery store or playing at a playground. Contracting COVID-19 will be an ever-present risk for all Albertans until a vaccine has been developed. All citizens should focus on having a functional day-to-day life, but at all times following public health guidelines to limit the spread as best as possible.
  

What we are saying

• For many employers who placed employees on temporary leave after the declaration of the public health state of emergency in March 2020, the maximum 120-day layoff period is about to expire. As we reported here, the maximum 120-day layoff period was extended when the layoff was due to COVID-19 related issues for up to 180 days. Employers are inquiring if the layoff period automatically extends to 180 days or whether notice that the layoff period has been extended is required.
  
• As the 180-day period is a maximum, we recommend that the employee be given notice that the 20-day period in the original layoff notice has been extended to 180 days. This notice can be via email or letter. Further notice is probably not required as section 62 of the Employment Standards Code does not state that the employer has to provide the length of the notice when advising employees of a temporary layoff. However, as it is fairly easy to provide notice of the extension, we still recommend that employers advise affected employees that the layoff has been extended in order to avoid an argument that the employer has not strictly complied with the legislation.