Article
May 7, 2020

COVID-19 and Employment Law

Virtually no employer is immune from the effects of Covid-19. Whether it is continued uncertainty, post-crisis recovery or re-opening for business, all employers must be informed of legal issues and obligations that may arise when dealing with employees.  In effort to be better prepared to mitigate risks and react quickly, we briefly discuss issues that all employers should be considering.

Re-Opening For Business

Employers must determine if it is legally permissible to reopen its doors, based on present government orders and restrictions, which will continue to evolve as Alberta continues to relax restrictions.  Care should be taken because breaching orders may result in fines, penalties and other adverse effects.

In conjunction with reopening for business, employers must use this time as an opportunity to update employment contracts as well as policies and procedures.

Foremost, employment contracts should be reviewed and updated, where necessary, to sufficiently address issues that COVID-19 caused to surface, such as temporary layoffs. Another significant consideration is whether or not your employment contracts have effective termination clauses or the express authority to changes to duties, compensation, and work location with defined notice requirements.

In terms of polices, some additional key considerations include adopting or updating work from home protocols and what that means in terms of security and privacy and the use of company tools, equipment, and computers. Revisions to travel polices may be required as well as clarity on whether or not various leaves of absences, such as sick leave, are paid or unpaid.  Policies will also need to be revised to reflect amendments made to various legislation as a result of Covid-19.

Layoff

A change to Alberta’s employment legislation extends an employer’s rights of temporary layoffs from 60 days to 120 days. Prior to layoffs, employers may wish to consider other statutory or personal leaves available to an employee.  Furthermore, layoffs require strict statutory compliance and must be carried out carefully.  The technical requirements of layoffs are not often discussed in the media and can provide employers a false sense of right or security.  For example, the legislative right to layoff does not necessarily provide a contractual right to layoff and may result in an unintentional termination of an employee where severance is owed.

For employers who have already conducted layoffs, the specific legislative guidelines regarding callback notices or options to continue the layoff status of its employees should be considered and reviewed.  Failure to adhere to legislative requirements may result in the deemed “termination” of employees, which result in catastrophic obligations in terms of exposure to paying large amounts of severances.

Human Rights

Covid-19 has not changed an employer’s obligation to accommodate employees beyond undue hardship.  In fact, the closure of schools and daycares in the province has caused the rarely used “family status” protection provided for in human rights legislation to surface to forefront of consideration.

In short, family status protection extends to an employee whose personal family obligations interfere with the ability to perform occupational duties. For example, it is discriminatory for an employer to refuse to allow an employee to work from home due to children care obligations.  Options should be explored, such as offering flexible work-schedules, using sick leaves, vacations and the prescribed job-protected leave to combat the uncertain time for short term relief.  Accommodation is a two-way street and the employee has a shared obligation to cooperate and act reasonably in terms of accommodation efforts and must exhaust all possible solutions before requesting a leave.

Workplace Health and Safety Obligations

Alberta occupational health and safety (“OHS”) legislation has always mandated employers take all reasonable and practicable measures to provide a healthy and safe working environment. COVID-19 presents a risk to the health and safety of workers and accordingly, employers must take reasonable steps to address this risk. What is appropriate and reasonable depends on the nature of the organization and the workforce and are reasonable steps today may not be reasonable tomorrow. Employer should ensure that they are following best practices by staying on-top of recommended safety protocols from our federal and provincial governments, the Public Health Agency of Canada and the Centre for Disease Control and others.

Some key considerations included limiting the number of employees, customers and clients in the workplace, encouraging social distancing in the office, lunchroom, waiting room, reception and elsewhere, ensuring all workplace hygiene and regularly sanitizing shared surfaces, preventing sick employees form being at work and implementing appropriate policies such as limiting non-essential travel, maintaining a list of names and contact details of people who attend the workplace to assist health authorities trace people exposed to Covid-19 and more.

Conclusion

The impact that Covid-19 has had on the legal landscape has and will continue to provide significant challenges to employers in Alberta. However, with careful thought and attention to the issues that may arise, it is possible to face these challenges, whether now or after the pandemic, in order to ensure that your business not only continues but thrives into the future. The team at Walsh LLP is experienced in all these matters and together we can help safeguard your business and make sure your obligations to your employees are met.

Questions

If you have any questions regarding the above please contact our office at 403-267-8400.

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