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.

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• The Government of Alberta continues to issue sector specific guidance for businesses reopening as part of the relaunch strategy. Recent guidance documents have been issued or updated for campgrounds, grocery stores, hotels and vacation rentals, outdoor events, restaurants and bars, taxis and rideshares, drive-in events, public rallies, wellness services, and recreation. All of the guidance documents can be found here.

What we are hearing

• On June 29, 2020, the Provincial Court of Alberta announced that effectively July 6, 2020, it would be increasing the number of matters that can be heard in person at certain locations. The Court will be enforcing strict health and safety measures including physical distancing, wearing masks, modifying courtrooms, and enhanced cleaning. 
• All civil matters scheduled after July 6, 2020 will proceed as scheduled, including in-person mediations, pretrial conferences, trials, and other applications. In Edmonton and Calgary, pretrial conferences and applications will be conducted in person. In areas outside of Edmonton and Calgary, pretrial conferences and applications will be conducted by telephone. 
• It has been unclear how the Courts would reopen for trials. It may be that the Provincial Court will be the test court, and if it can allow matters to proceed in person without infection, the Court of Queen's Bench may follow the same procedures.

What we are saying

• With the courts slowly reopening and the implementation of new procedures to allow parties to move existing court actions forward, we are confident that the courts will expect parties to show cooperation and good faith effort to facilitate resolution of interim or procedural issues. Although we expect the courts to be sympathetic to struggling businesses engaged in litigation, as we move through Stage 2 of the relaunch, we expect courts will not accept the existence of the public health state of emergency as a continuing excuse for not meeting obligations under the Alberta Rules of Court. 
• Our advice is for parties to existing litigation to be ready to move matters forward and find the time to commit to the litigation. If the commitment of such resources at this time is still not possible, litigants should objectively document any ongoing limitations being faced by that party that justifies not taking required steps.

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. 

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act 2020) passed a third and final reading yesterday in the Legislature. This legislation extends the period of temporary layoffs from 120 days to 180 days, and it is effective as of June 17, 2020. The new legislation still requires royal assent to be in force, and that should occur soon. 
• On June 25, 2020, the Government of Canada announced additional financial support for students. 
• Highlights from the announced support include:
• The launch of the Canada Student Service Grant (CSSG) which will support post-secondary students and recent graduates as they volunteer to assist with their communities' COVID-19 response by providing a one-time payment between $1,000 and $5,000 based on the number of volunteer hours served. 
• Investment of $186 million in the Student Work Placement Program to assist post-secondary students obtain paid work experience related to their field of study by funding an additional 20,000 job placements in high demand sectors.
• Investment of $60 million in wage subsidies for employers to create 10,000 new job placements for young people between the ages of 15 and 30 through the Canada Summer Jobs program.

What we are hearing

• The creation of a single health unit under Alberta Health Services (AHS) and the resulting centralization of the delivery of healthcare to Albertans was met with some resistance when it was implemented in 2008. There continues to be some criticism of AHS, especially with respect to its annual per capita costs to the public. However, AHS' centralized response to the COVID-19 pandemic and its ability to regulate public health directives has been a strong positive as compared to other provinces with multiple health units.
• Although Alberta's implementation of its relaunch strategy has been in uniform, the public health guidance from AHS is issued to the entire province. That is not the case in other provinces. In Ontario, for example, neighbouring health units are implement different rules regarding such things as physical distancing and the use of masks. This is leaving some employers frustrated, as some customers are choosing which business to frequent based on whether they have to wear a mask.

What we are saying

• We continue to see counsel for plaintiffs in wrongful dismissal claims suggest that the stagnant job market caused by the pandemic is a factor that works solely to the benefit of employees in determining their notice entitlement at common law. We have yet to see a judicial decision support that conclusion and we believe that this conclusion is flawed. 
• An example of the logic used by plaintiff counsel is that the courts have on occasion commented that a depressed local economy can support a longer notice period. Indeed, one of the Bardal factors considered by courts in assessing a notice period at common law is the availability of replacement income for a person with similar characteristics as the employee (age, education, work experience, management responsibility, etc.). Plaintiff counsel, however, have suggested that the paused economy caused by COVID-19 will necessarily result in a longer notice period for the terminated employee in order to give that employee a reasonable opportunity to find replacement income. 
• This logic is flawed in that it ties the time required for that specific employee to find a job, as opposed to a reasonable person with the employee's personal characteristics. A notice period is not an insurance policy, compensating a particular employee until he or she finds a job. Indeed, how long the employee actually takes to find a job is expressly not a Bardal factor and therefore should be irrelevant. Nevertheless, the evidence on that point may on occasion be referred to as evidence that substantiates the court's assessment of the appropriate notice period using the Bardal factors.
• In our opinion, the courts will not foist the economic cost of a global pandemic solely on employers struggling to rebuild their businesses as the economy reopens. As long as the court agrees that the termination was done in good faith, the notice period for a terminated employee now should be no different than that employee's notice period in February 2020. Time will tell whether courts accept this logic, and employers should be prepared for either possibility.

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• On May 27, 2020, we provided a brief synopsis of the continued operation of the Temporary Foreign Worker ("TFW") program during the COVID-19 pandemic. At the time, the Government of Canada had temporarily relaxed some requirements for employers seeking to bring in TFWs in the Agriculture, Food Processing, and Trucking industries.
• The Federal Government has subsequently further updated certain aspects of the program. Due to higher unemployment rates resulting from COVID-19, recruitment and advertisement requirements have been updated, with recruitment efforts being required to take place in the current labour market to ensure Canadians and Permanent Residents are considered first for available jobs. This update applies to pending Labour Market Impact Assessments ("LIMA") received prior to June 15, 2020 and includes the following:
• Any ads posted before March 15, 2020 may need to be re-posted for an additional two consecutive weeks.
• When re-advertising, employers must also meet all the minimum recruitment requirements. 
• However, as of June 10, 2020, the TFW program is prioritizing certain occupations considered "essential". The program is prioritizing and waiving minimum recruitment requirements for the following non-exhaustive list of occupations:
• Agricultural service contractors, farm supervisors, and specialized livestock workers;
• General farm workers;
• Labourers in food, beverage and associated products processing;
• Harvesting labourers;
• Butchers, meat cutters, and fishmongers in retail and wholesale;
• Butchers and meat cutters, poultry preparers and related workers in industrial settings; and
• Nursery and greenhouse workers. 
• Employers hiring a replacement worker under the Agriculture stream are not required to re-advertise the vacant position when submitting a LMIA application for the replacement worker. This applies only if the replacement worker is in the same Job Bank economic region and the same occupation as the ones stipulated in the previous positive LMIA. 
• The program is prioritizing and not waiving the minimum recruitment requirements for other occupations such as registered nurses, specialist physicians, general practitioners and family physicians, pharmacists, light duty cleaners, and transport truck drivers. 
• Agriculture businesses will have until June 30, 2020 to apply for the Mandatory Isolation Support for Temporary Foreign Workers Program, a program providing up to $1,500 per TFW to assist employers with incremental costs associated with the mandatory 14-day isolation period imposed under the Quarantine Act.
• As a brief reminder, employers must always pay for the TFW's private health insurance. Coverage must begin from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/territorial health insurance plan. Under no circumstances can an employer recover the health insurance costs from the TFW. 
• Separately, due to significant concerns regarding the recent deaths and ongoing safety of Mexican TFWs working at farms, Mexico and Canada have reached an agreement wherein Canada committed to increased farm inspections and further supports for Mexican officials and workers, including identifying and reporting unsafe working conditions. The requirements on employers are strict and subject to audits by Employment and Social Development Canada. If found in contravention, the employer is subject to strict penalties, including fines of up to $1 million and a ban from hiring TFWs in the future.

What we are hearing

• On June 22, 2020, Ontario announced its approach to reopening schools for the 2020-2021 school year. Unfortunately, the approach is as non-specific as the current Alberta plan.
• In both Alberta and Ontario, the governments are planning for one of three scenarios
• In-school classes resume with near normal operations while still following public health measures and directions;
• In-school classes partially resume with modified routines, smaller class sizes, cohorting and alternative day or week attendance; or
•  Continued, although enhanced, at-home learning.
• The takeaway for employers is that even if there is an ability for employees to safely return full-time to the workplace as of September, childcare issues will likely continue to impair the ability of certain employees to do so and no clarity will be forthcoming until August 2020.

What we are saying

• Ontario announced it would be launching a new privacy-first exposure notification app within the next two weeks called COVID Alert, a voluntary download that will give people who test positive for COVID-19 the option of anonymously alerting all other app users who have been close contacts in the last 14 days.
• Although Ontario is stating that COVID Alert is a fast, secure and privacy-protected way to notify users of potential exposure, that is will never collect personal data or GPS location data and the app leverages global best practices to protect privacy, similar promises were made about the ABTraceTogether app launched in Alberta in early May 2020, which assurances were quickly disputed by privacy experts. 
• A question that arises is whether an employer can force its employees to download and enable either COVID Alert or ABTraceTogether as a condition of employment. Please see our discussion on this topic in our email alert "ABTraceTogether: Contact Tracing All in the Workplace".
• Employers should be cautious, however, as if the app is not as secure as represented by the developers. A further question arises as to whether the employer, by requiring an employee to download and enable the app, would be liable to the employee for any loss suffered by the employee if a hacker using the app to secure and misuse the employee's personal information.
• Any employer who is considering making it a condition of employment that its employees download and use the app should discuss the possible legal issues arising from such a direction with legal counsel.

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• As with the Canada Emergency Response Benefit (CERB), the Federal Government announced that the Canada Emergency Wage Subsidy (CEWS) would be extended to the end of August 2020. Although of some assistance to employers, there have been many complaints about the effectiveness of the CEWS, such as: 
• The comparatively late announcement of the subsidy amount of 75% of employee wages up to $847 per week;
• The delay of a full month from the start of the pandemic in providing details of the program to employers coupled with the 6-week delay in unveiling the application process; 
• The program requirement that employees who had been laid off or furloughed due to the delay in rolling out the program were only eligible if they were rehired and were paid their retroactive pay in order to meet the eligibility criteria for the claim period; and
• The requirement to show a 30% reduction in revenues.
• The Government had estimated it would pay out $73 billion in CEWS applications. To date it has paid out $13.3 billion. We hope the Government will realize the difficulties its current eligibility requirements are causing and streamline the process.

What we are hearing

• The Court of Queen's Bench of Alberta took another step forward in its effort to implement procedures to allow actions to move forward. As of June 24, 2020, the Court will commence scheduling half-day Civil Special Justice and Masters Chambers applications remotely via WebEx. These hearings have largely proceeded in the same manner as previously, with the exception being that counsel cannot rely on any evidence or case authority that was not provided in advance of the application. In some ways, this could be a positive as it may reduce the number of adjournments, which used to occur in Chambers at the last minute when a party passed up a case or document not previously disclosed to opposing counsel despite the requirements under the Alberta Rules of Court.

What we are saying

• Consistent with the above efforts of the Court of Queen's Bench to create ways to allow for litigation to move forward without the need for in-person attendance, a recent decision of the Court addressed the issue of Questioning or examination by video-conference when one party will not agree to proceed in that fashion. 
• In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 (CanLII), there had been an emergency injunction application heard after the declaration of the state of public health emergency in Alberta. The application had failed, but the Court directed the parties to "attempt to draw up the procedural roadmap for the reinstatement litigation". The parties were unable to do so, with the primary point of contention being whether Questioning on Affidavits should be deferred until the pandemic was over or whether they should proceed via video-conference. The main objection by one of the parties was that the process would be unwieldy, and as many of the applicants were over the age of 60, effectively managing the technology would be too difficult. 
• The Court reviewed the 2010 changes to the Alberta Rules of Court and found that although there were recent decisions which contemplated the ability of parties to agree to conduct video-conference Questionings, there was to date no decision where the Court had directed a party to submit to such a procedure over its objection. Justice Lema did find a decision prior to the introduction of the new Rules in 2010 where the Court did direct completion of Questioning for Discovery via video conference. 
• As such, and in light of the foundational Rules which direct the Court to augment the Rules as necessary to ensure the fair, just, and timely resolution of parties' claims, the Court determined it had the authority to direct the parties to proceed with Questioning on Affidavits by way of video conference and made such a direction. 
• This decision is a clear indication that the Courts will not allow parties to sit on their hands and wait for things to return to normal. Counsel must embrace that the modernization of the litigation process has been accelerated by COVID-19 and a new way to practice is being created.

McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• As we just reported in our last blog, the Alberta Government introduced Bill 24 (COVID-19 Pandemic Response Statutes Amendment Act, 2020) on June 18, 2020. The bill proposes new amendments to legislation effective immediately that are deemed necessary as a result of the end of the public health state of emergency.
• Important elements of Bill 24 relating to employers include:
• Extending the temporary layoff period under the Employment Standards Code from120 days to 180 days, with the extension expressly applying to employees who are already on a layoff when the amendment was introduced;
• Extending the unpaid job protected leave due to either infection, quarantine, or child or family care obligations arising from COVID-19 to August 2021; and
• Increasing the number of children permitted in a cohort at a childcare facility from 10 to 20. This will provide employees who are being asked to return to work additional childcare options.

What we are hearing

• Thus far, although discussion about whether masks should be mandatory when social distancing is not possible is ongoing, we have seen no indication that the local or provincial government intends to pass such a law any time soon. Thus far, the Chief Medical Officer for Alberta has been satisfied that the encouragement being given to Albertans to wear masks in certain situations will be sufficient, especially if infection and hospital rates stay stable.
• Some businesses have implemented mandatory mask policies on their own. As a general rule, as business premises are private property, a policy to refuse service to anyone not wearing a mask is enforceable. However, business owners should be cognizant that if a person cannot wear a mask for health or religious reasons, refusing service may constitute discrimination under the Alberta Human Rights Act.

What we are saying

• Questions are arising about the collection and use of customer information as businesses reopen in Alberta. This arises from attempts to avoid COVID-19 infections from occurring and to assist in contact tracing if an infection does occur. The Office of the Information and Privacy Commissioner of Alberta (OPIC) has recently provided guidance about considerations for businesses to keep in mind to ensure they comply with Alberta's Privacy Information Protection Act (PIPA).
• Some key takeaways from the OPIC guidance include:
• Advance warning that information is going to be collected should be provided in advance via the organization's website, social media, or posters on the door to the workplace;
• Written or oral consent from the customer must generally be obtained;
• Notice must be given about why the information is being collected, which can be written or oral;
• Only information legitimately required by the business as part of its COVID-19 policy can be collected; 
• Safeguards must be in place to ensure that the information collected is not disclosed, accidentally or otherwise, to other customers (such as through the use of one sign-in sheet for all customers) or employees who do not need the information; 
• Any information collected cannot be used for any other purpose, such as adding the customer to a subscription list;
• If information used in the past for a specific purpose, such as online booking, is going to be used as part of a COVID-19 policy, notice of this additional use must be provided;
• The name of the organization's representative who can speak to the collection, usu, and storage of the information must be provided if requested;
• Customers have the right to subsequently demand access to any of their personal information collected by the organization; and
• The organization should consider how long it must retain the information for business or legal purposes. 
• We recommend that legal counsel be contacted in advance to assist with or review an information collection strategy as part of a COVID-19 policy.