March 19, 2020
Author: Dylan Snowdon
For Businesses Affected by COVID-19: FAQs for Alberta Employers
As with most workplace employment issues, managing COVID-19 in the workplace requires a balancing of multiple legal obligations and interests. This is a stressful and challenging time for both businesses and employees, and many employers may have questions as the coronavirus outbreak affects jobs across Canada. This blog aims to answer many questions businesses may have about how to manage their workplace policies during the COVID-19 pandemic. Please note that these FAQs are provided for information only.
If you are seeking guidance on how to manage your business’ response during COVID-19, please contact anyone from Carbert Waite’s Employment Law Group to discuss your unique situation. Alberta Health Services is posting up to date information and news releases about COVID-19 here.
Sick Leave Policies During the COVID-19 Pandemic
1) When should employees be off on sick leave?
If an employee is symptomatic of any illness it is recommended that they not attend work. Additionally, any employee who returned from travel within the past 14 days, has tested positive for COVID-19, or is involved with the care of a sick person should be advised to remain home.
2) If an employee is diagnosed with COVID-19, what sick pay do I have to provide them?
The first step is to follow your current internal policies and provide the payments set out under your policies. Alberta employers are not required to make payments beyond their sick leave policy allowances.
Once sick pay allowances are used up, or if such benefits are not provided, employees may also be able to make an application under a Short Term Disability insurance plan, or seek EI medical benefits. Alberta employers are not required to make payments beyond their sick leave policy allowances.
As set out in the Government of Canada’s update (here) Employment Insurance (EI) sickness benefits are being extended to Canadians affected by COVID-19 and placed in quarantine, with the following support actions:
- The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined so they can be paid for the first week of their claim
- Establishing a new dedicated toll-free phone number to support enquiries related to waiving the EI sickness benefits waiting period
- Priority EI application processing for EI sickness claims for clients under quarantine
- Effective March 11, 2020 people claiming EI sickness benefits due to quarantine will not have to provide a medical certificate
People who cannot complete their claim for EI sickness benefits due to quarantine may apply later and have their EI claim backdated to cover the period of delay
The Alberta Government issued an Order in Council amending the Employment Standards Code to include a 14 day unpaid sick leave, retroactive to March 5, 2020. This COVID-19 sick leave is in addition to the protected 16 weeks of unpaid illness or injury leave per year provided under the Code.
Managing Scared Employees During the COVID-19 Pandemic
3) What do I do if an employee refuses to come to work, or refuses to work remotely, but is not sick or identified as being at risk?
An employee who refuses to attend work when they are not able to work remotely should be asked why they are refusing to work. If the employee states that they believe they are unsafe to attend, the matter should be managed as an OHS refusal and conduct an investigation to determine whether danger exists and if so, to eliminate the danger. Document the worker’s notification, the investigation findings, and the remedial action taken (if any).
An employee refusing to work remotely, where such work is consistent with their position, without a reasonable explanation should be dealt with through normal performance management that could include termination for serious insubordination. However, before termination of employment is reached we recommend working with employees to find reasonable solutions and accommodations.
4) Can we prohibit employees or the public from coming into the office?
In the case of the public, most businesses are entitled to close if they wish to. However, it would be discriminatory to restrict some members of the public from coming into the business if the determinations were made based on a prohibited ground under human rights laws.
In the case of employees, assessing whether they can work from home or not will impact the decision. For employees who cannot work remotely, arrangements must be made to either continue paying them or implementing a temporary lay-off or permanent termination of employment.
Layoffs and Terminations Due to COVID-19
5) What do we do if we are required to temporarily close the business and employees are not able to work remotely?
Employment and Social Development Canada has been updating the rapidly changing EI requirements and available benefits. The most recent notice is linked here.
EI may be available for employees whose earnings are interrupted due to sick leave, temporary lack of work, or permanent terminations of employment.
Employers may be able to supplement EI payments with a top-up under the Supplemental Unemployment Benefit Program.
In general, an employer stopping or reducing pay, including by removing otherwise reasonably expected shifts, without an employee’s consent risks the employee asserting constructive dismissal and seeking their right to a payment in lieu of notice of termination. Rather than stopping pay, it is a better practice to engage in clear communication with employees to advise what their employment status is and expectations for pay. If pay is to be stopped, issuing a temporary layoff or permanent termination of employment will provide clarity of circumstances and hopefully avoid a dispute in the future.
Implementing a temporary layoff without having a specific contractual right to do so involves some risk of an employee declaring constructive dismissal and the business becoming liable to pay a severance amount. While we view that risk as low in the current circumstances due to the likelihood of employees not wanting to seek replacement employment, temporary layoffs should be viewed with caution.
Under the Employment Standards Code, you are required to give advance notice of the temporary lay-off as:at least one week prior to the date that the layoff is to commence, if the employee has been employed by the employer for less than 2 years,
- a) at least 2 weeks prior to the date that the layoff is to commence, if the employee has been employed by the employer for 2 years or more, or
- b) if unforeseeable circumstances prevent an employer from providing the notice in accordance with clause (a) or (b), as soon as is practicable in the circumstances.
- c) Under the circumstances, it is our view that (c) is supportable and that minimal notice is required. Again though, we note that liability protection will be enhanced by providing advance notice where possible.
We also note that your recall notice must be issued within the next 53 days, must be in writing, and must be delivered to the employee. Please follow up with your employees to ensure you have up to date contact information for delivery of the recall notice including mailing and personal email address. If you do not issue the recall notice by day 53, giving 7 days notice of recall, then you will not have adhered to the Code requirements and are likely to be found liable to pay termination notice amounts to the employee.
Alternatively, the Code provides the ability for an employee to agree to a longer lay-off period in exchange for the payment of some wages or benefit contributions, with the employee’s agreement.
Terminating Employees Due to COVID-19
While it may not be an employer’s first choice, termination of employment may be the only viable option for businesses that are closed or seeing a shortage of work. Before ending an employee’s employment we recommend speaking to an employment lawyer and discussing all options as well as identifying entitlements to payment.
We also note that the Alberta government has announced an intention to pass legislation providing employees with job protection with respect to several COVID-19 related absences and leaves. Depending on how the protection is structured, termination of employment may not be available in all circumstances. We will update this information as it becomes available.
6) We need to permanently fire some of our employees for financial reasons related to COVID-19. Can we provide a reduced termination package because of the pandemic?
The Employment Standards Code establishes minimum notice or pay in lieu of notice on termination of employment that is not affected by the employer’s circumstances. While some Canadian courts have awarded reduced severance where an employer was in financial distress the majority of courts will not allow a reduced severance payment on that basis. Rather, the current situation is likely to increase common-law assessments of reasonable notice periods due to the higher difficulty expected for employees to find new work.
7) Does the temporary closing of my business qualify as frustration of contract, allowing me to terminate employees without pay or notice?
Frustration of contract is the legal termination of an employment agreement when the contract either becomes impossible to complete or would be radically different because of a change in circumstances. Frustration of contract is specific to each situation, but the short answer is: probably not. If a business is being permanently closed due to an inability to maintain operations then it is possible that employment contracts could become frustrated. We recommend speaking to an employment lawyer if your business is suffering severe impacts of COVID-19 restrictions.
Positive COVID-19 Tests
8) What are our legal obligations if an employee tests positive for COVID-19?
Employers have an obligation to provide a safe workplace for employees. If an employee contracts COVID-19, you should contact 811 for direction regarding what to do. It is likely that all employees who had recent contact with the employee will be asked to self-isolate and other steps will need to be taken to ensure that the rest of the workplace is safe, such as additional cleaning.
9) Are we allowed to tell other employees the name of an employee who tested positive for COVID-19?
In general, an employer is not permitted to disclose personal health information of an employee without consent. If the positive employee consents then the information may be disclosed. Otherwise, unless revealing the name of the individual is necessary in order to determine who was in contact with the individual, revealing the name is not recommended.
COVID-19 Vacations and Sick Days
10) Can a company require employees to use up their sick leave and vacation days if we have to close the business temporarily?
Yes. Employers have the right to schedule vacations and can require employees to take vacation by providing them with two weeks of advance notice of when the vacation is to be used. For sick days, employers should review their sick-leave policy to determine how those days are managed. In many cases the closure of business due to quarantine or public health orders will allow an employer to require sick days be used.
11) Is there government funding available to assist businesses during the COVID-19 pandemic?
Employers may be eligible for the Federal Work-Sharing Program. This is a program designed to avoid layoffs when there is a temporary reduction in the employer’s business activities from a half day to three full days, resulting from factors beyond the employer’s control. The program is available to both federally and provincially-regulated employers.
If an employer is eligible, and if its employees agree to it, the employee’s work schedule would be reduced and would share available work for a period of time. Employees will be eligible for EI to top-up their reduced income, resulting from reduced hours.
Both the employer and employee must apply to participate. The application form is found here.
12) Do group benefits cover COVID-19 absences?
Entitlement to Short Term Disability benefits will depend on the policy and be up to the benefits provider. Employees unable to attend work due to illness or quarantine should be encouraged to submit applications for STD benefits.
Issues with Childcare and Employment Due to COVID-19
13) What if employees can’t come to work due to school closures?
Given the large scale recommendations for people to work from home where possible, many employers can anticipate employees making this request; particularly if they need to stay home with children.
Human Rights legislation protects individuals from negative employment impact due to family status. Given the sudden closure of schools it is likely necessary for employers to allow employees to work from home or to take some form of leave of absence to care for their children. However, employees cannot demand a paid leave to look after children. Employees are required to explore all reasonable options for childcare.
Even if COVID-19 does not pose an immediate threat to your workplace, employers can still implement measures to help prevent and control the spread of COVID-19 and other illnesses. Remind employees to take preventative measures, such as washing their hands frequently with soap and water for at least 20 seconds (the duration of “Happy Birthday” sung twice, or other creative alternatives such as those set out here). Consider alternative measures to prevent the spread of illnesses such as allowing employees to work from home; holding conference calls instead of meetings; and allowing employees to work flexible hours in order to avoid public transportation in peak times.
If you would like more information about an employer’s legal obligations or assistance in managing COVID-19 in the workplace, please contact a member of the Carbert Waite Employment Law Group.