Written by John Gilmore and Stephanie Henry
In recent weeks, Alberta's Chief Medical Officer of Health issued various public health orders in response to the COVID-19 outbreak. These public health orders, along with various ministerial orders and direction from the Federal Government, are aimed at controlling the spread of COVID-19. As a result, several businesses and facilities are mandated to be closed, including non-essential retail, personal services businesses, schools and daycares. These closures, while necessary, are significantly and negatively impacting economic activity in Alberta.
Alberta's economy has been further impacted by the falling price of oil. In response, on April 6, 2020, Alberta's government announced temporary changes to the Alberta Employment Standards Code, which will provide further flexibility for Alberta employers in their attempts to respond to the present economic crisis.
At the time of writing, the ministerial orders effectuating these changes have not been published. However, the announced changes are said to be immediate and will remain in force while the public health order declaring a state of emergency remains active.
The changes are as follows:
- Employees who are unable to work because they are caring for: (i) children affected by school and day care closures or (ii) ill, or self-isolated family members due to COVID-19, will have access to an unpaid, job-protected leave of absence. The employee need not be employed by the employer for 90 days and need not provide a medical note in order to be eligible for the same. The length of the leave is flexible and the duration will be linked to guidance from the Chief Medical Officer of Health. This job-protected, unpaid leave provides relief for employees who need to take time off to care for children or family members and want to return to their employment post-pandemic.
- Section 17(2) of the Employment Standards Code requires employers to provide employees at least 24 hours' written notice of a change to their scheduled shift. Effective immediately, and subject to the terms of an employment contract or collective agreement, employers can now change an employee's shift time without providing the 24 hours' notice. Of course, employers should make best efforts to provide employees with reasonable notice of a shift change. However, temporarily removing the 24 hours' notice requirement gives employers flexibility to respond quickly to staffing needs and thereby, help to keep operations going.
- Section 13.33(1) of the Employment Standards Regulation, requires an employer to provide at least two weeks' notice of a temporary change to an employee's work schedule, where the schedule is subject to an Hours of Work Averaging Agreement. This two-week notification requirement is now temporarily waived. Many employers, especially in Alberta's oil patch, rely on hours of work averaging agreements. The waiver of this two-week notification requirement of a shift change will allow employers the flexibility to respond quickly to changing workforce demands. Employers should remain mindful of collective agreement and employment contract provisions and should provide reasonable notice of a shift change where possible.
- In a similar vein, the government announced that it will streamline approvals for modifying employment standards requirements, through variances and exemptions, related to COVID-19. We do not have details on this streamlined process, but we expect variances and exemptions to be granted more quickly in an effort to provide employers with the flexibility needed to respond to COVID-19 and its impact on the workplace.
- In response to the economic crisis, many employers have engaged in or are considering engaging in temporary layoffs to reduce their payroll burden. Under the Employment Standards Code, once an employee has been temporarily laid off for a period of 60 days within a 120-day period, the layoff will crystalize into a termination, and termination pay will be due to the employee. The government has temporarily extended this period, such that the layoff will not crystalize into a termination until 120 days have passed. This change is retroactive and applies to all temporary layoffs effectuated on or after March 17, 2020. Note, there are further strategies the employer can use to extend the temporary layoff period by entering into an agreement with the employee to continue wages or benefit payments during the layoff instead of having a firm date on which the temporary layoff will end. Please further note that, subject to the terms of an employment contract, a temporary layoff, even one sanctioned by the Employment Standards Code, can amount to a constructive dismissal.
- Section 137 of the Employment Standards Code requires an employer to provide advance notice to the Minister of Labour, a union and any affected employee where it intends to terminate the employment of 50 or more employees, at one location in a four-week period. The length of notice depends on how many employees are being terminated. Under these changes, the government is waiving the requirement for employers to provide group notice of termination to affected employees and unions. However, the employer must still provide the notice to the Minister as soon as practical.
We continue to monitor these changes and will provide updates as they become available. Members of our Bennett Jones Employment Services group are available to answer questions you may have with respect to workplace issues in light of the COVID-19 outbreak. In addition, please visit our COVID-19 Resource Centre for other COVID-19-related materials.