COVID-19 and Employment Law - What You Should Know as an Employer
In these times of pandemic, there are numerous pressing considerations that employers will have to handle on a day to day basis. This article will highlight some of the major concerns of employers. But as with all matters, you should consult with your legal counsel regarding the particulars of your situation. Some of the highlights of this article include:
- What obligations does an employer have to its employees?
- Can an employer terminate its employees? Or put them on layoff status?
- Can an employer force its employees to work? Or stay home from work?
- Do employers have to pay for temporary layoffs?
- What rights do employees have to refuse to work on a particular project?
- What will the employer have to pay an employee who is terminated (or deemed to be terminated) under the Employment Standards Code?
Generally speaking, an employment contract is an agreement where an employee agrees to do X work for Y pay. If the employer changes that equation for any reason without the employee’s specific consent, the employee may be in a position to claim wrongful dismissal. And a lawsuit and damages could undoubtedly ensue. Add to that the myriad of obligations imposed under Provincial and Federal statutes and regulations and the result can be mind-boggling.
Consider then the obligations of the employer. It must first provide a safe work site for the employee. If there are reasonable concerns raised by the employee that the worksite is unsafe because of the COVID-19 pandemic, the employee has every right to decline to work. Note that the justification must be “reasonable” in all the circumstances. As a corollary, the employer must take every reasonable step to ensure the safety of its workers, whether this is the erection of barriers to prevent transmission of the virus or the creation of social distances on site. One should catalogue the actions taken by the employer to improve the worksite under the Alberta Health & Safety guidelines as it may be necessary to communicate that to the Government Inspectors under the Code.
Taking reasonable steps to ensure the safety of employees may also involve the employee being allowed to work from home if this meets the obligations of the work contract. Although an employee may work from home, the employer has every right to insist on the usual work hours and standard of attention to the job. Employers should document any equipment or other materials provided to the employee for use at home.
Given the closure of schools, child care and other facilities, there may also be an obligation on the employer to permit “Family Status Accommodations” where an employee has a child at home, or they are required to look after another family member under their care. Although a delicate area, it means that the employer may be compelled to let an employee stay away from the worksite, alter their workloads, or permit them to work from home in these given instances to fulfill their family obligations.
The Alberta Government has also amended the Employment Standards Code in response to COVID-19. Any person returning from travel, or showing any signs of a COVID-19 infection, or having come into contact with anyone who has the virus, will have to self-quarantine themselves for 14 days. The self-quarantine period is unpaid unless otherwise provided for in the employment contract or benefits package of the employer.
If an employee cannot work due to having the illness, you should immediately send the person home. The Federal Government has implemented new rules permitting the employee to apply for Employment Insurance without the usual waiting period, so they should be entitled to benefits forthwith. Another option would be for the employee to opt to take sick leave or vacation time while recovering from the virus and thus receive the regular benefits due under their benefits package.
If an employer’s workload has diminished, and it can no longer afford to keep the employee on the job, the employer does have the choice of termination or temporary layoff. It is not a justification that there is a COVID-19 pandemic to fire the employee without notice. That does not rise to the standard of “just cause” such as theft or breach of trust or other serious breaches of the employment agreement.
Termination will mean that the employee is entitled to the severance pay provided in the Employment Standards Code, which will be based on the years of employment. But remember that may only be a minimum, as the Courts have set clear guidelines on what might be “reasonable notice”. These variables will consider the age of the employee, the seniority they possess, whether there are others being supervised, the length of employment, the availability of other work in that or similar fields, amongst others.
One alternative to a straight out firing would be a temporary layoff. In Alberta, this typically requires written notice, and it must stipulate when it begins and ends and must include a copy of sections 62-64 of the Employment Standards Code, but this can be omitted if there are unforeseeable circumstances. The temporary layoff can only be for 60 days out of any 120 day period. If the employee is not taken back, the person is deemed to be terminated and all damages mentioned above may flow.
Another practical alternative if the employer cannot afford to pay an Employee due to a slowdown might be to negotiate a temporary reduction of wages. If the employee refuses the decrease or change of duties, that would likely constitute a constructive dismissal, for which regular termination pay would apply. But with the employee’s consent, this can always be done, subject to the minimum wage and other laws in force in Alberta. It is best to discuss this with the employee before taking any unilateral actions.
The employer might also consider taking other cost-cutting measures to delay the onset of wage reductions. Note also that the Federal Government has implemented wage subsidy programs for businesses in Canada that may allow for the employer to send the Employees home for lack of work, yet retain them on the payroll with the Federal Government picking up the costs under that program.
The bottom line is that the country is in a state of flux with the novel Coronavirus pandemic. It will call for patience on the part of employers, employees, and the Government. If you have specific questions relating to your business, our legal team at Gurevitch Burnham Law Office is ready to help. We are available for consultations by telephone or email at your convenience.