COVID-19: Employment Law in Alberta

COVID-19 is forcing rapid action and changes in the legal and employment landscape in Alberta and we are receiving a large number of questions related to employment matters from our clients.  This document is intended to provide high-level information regarding the changes to Federal and Provincial laws pertaining to protected leave and employment insurance (EI). Note that we do not yet have the final legislation on all of these changes and that the below is based on announcements from government, which are occurring every few hours. This document only pertains to non-union employees in Alberta.  Please reach out to us if you have questions on employees in other provinces or federally regulated industries.

Employer obligations are subject to change quickly, particularly if legislation is further amended, businesses are ordered to close, or your workplace has a suspected or confirmed case.  This is a fluid situation and we certainly don’t expect to be able to constantly update you or have every answer, but the below is what we see happening as of now.

As this is not client-specific, this document is merely information and not legal advice.  Before implementing any steps, we urge you to seek legal advice to confirm that those steps are appropriate at the current time and in light of your specific circumstances.  Our main office contacts for Employment Law are at the bottom of this document.

Alberta’s Employment Standards Code

The provincial government has announced that eligible Alberta employees will now receive 14 days of job protected leave by passing legislation and backdating it to March 5, 2020.  These employees will not have to have worked 90 days for the employer before the leave starts and they will not have to provide a medical note.  The important point is that an employer cannot terminate an employee who takes an absence from work due because of the requirement to self-isolate/self-quarantine as dictated by the Chief Medical Officer (keep an eye here and here for dictations on who needs to quarantine).  This job-protected leave only extends to employees who are quarantined as a result of COVID-19, as may be recommended or directed by the Chief Medical Officer.  The Chief Medical Officer of Alberta is Dr. Deena Hinshaw.

This means that this leave does not appear to apply if the employee is merely taking precautions or has childcare restrictions.  We may see this leave expanded, particularly as businesses get shut down or the Chief Medical Officer dictates a wider category of quarantine.  Contrary to some mixed messaging, this is an “unpaid” leave, but the employees should have access to EI as described below.

Federal Employment Insurance Act and Other Benefits

The Federal government announced a number of EI supplements and financial assistance measures during the past week or so including the Canada Emergency Response Benefit/CERB (see a summary of the support measures here). In addition, the Federal government has announced changes to sick leave EI:

1. The waiting period will be waived completely for COVID-19 quarantine related applications;
2. Employees claiming EI sickness benefits due to quarantine will not have to provide a medical certificate; and
3. To receive benefits beyond quarantine, the employee needs to receive a doctor’s certificate.

As of now, the Alberta government is recommending isolation for travelers returning to Canada, symptomatic Albertans, Albertans who test positive, and Albertans who have had close contact with a confirmed case of COVID-19, which recommendations are here.  For more information on EI, the CERB, and layoffs, you can find articles on those topics here.

Alberta’s Occupational Health and Safety Act

There has been talk about amending the Occupational Health and Safety Act but this does not yet appear to be announced.  As of the time of writing, employers have obligations under the Occupational Health and Safety Act to, as far as is reasonably practicable, ensure employees’ health, safety, and welfare.  Employers also have obligations to ensure the health and safety of other individuals at the place of work.  This of course includes encouraging hygiene, keeping the workplace clean and sanitized, social distancing, and the self-isolation and testing of symptomatic employees.

Given the above described changes to job protected leave and EI, you may now have obligations to permit, or even recommend, working from home and self-isolation where recommended.  Even when an employee cannot work from home, there may be more obligations to send them home if they meet the above government guidelines for isolation because that is now reasonably practicable, recommended to protect your other employees, and they can apply for EI.  Further, if you have a symptomatic employee or an employee who has tested positive for COVID-19, you may have an obligation to inform your other employees.  One way to demonstrate that you are working to comply with OHS is to send communication to your employees on the steps that you are taking.  For more information on OHS obligations, you can find an article on that topic here.

Brief Summary

To summarize the points above, if employees remain absent from work because they are concerned about contracting COVID-19 without having been in close contact with a positive case, or for childcare reasons, we currently see no obligation for an employer to pay them or for the employee to have access to EI or CERB.  If they wish to take an absence without meeting the criteria for isolation/quarantine, there are several options including the employee taking 5 days’ personal and family responsibility leave or vacation under the Employment Standards Code.  An employer cannot force an employee to take this leave as vacation because the employer hasn’t given two weeks’ notice.  If the employee wishes to collect EI or the CERB, a layoff may be required.

Temporary (60 day)_Layoffs

There is excellent information on layoff notices and their contents here. In Alberta, temporary layoffs require either one or two weeks’ notice before they commence, depending on seniority.  There is a pseudo-exemption in the Employment Standards Code for notice periods of layoffs in the event of unforeseeable circumstances.  In the case of unforeseeable circumstances preventing notice, an employer need only provide notice as soon as it is reasonably practicable.  Many of our clients have been relying on that exemption, though whether it will cover employees in the COVID-19 crisis is fact-specific and not yet decided by the courts or governments.  This will also be affected by whether you are an essential service or shut down.  Not providing notice may increase the likelihood of a constructive dismissal claim from an employee.  If required, we are happy to provide a template temporary layoff notice complying with Alberta requirements and advice on whether notice should be provided.

Note that a temporary layoff is limited to 60 days within a 120-day period.  Since it is possible that this slowdown will persist well past 60 days, this is not a perfect solution.  There is some discussion of layoff periods being extended in Alberta but this has not yet been implemented and will require a change to the legislation.  On the 61st day of a temporary layoff, the employee’s employment is deemed terminated, and the employer will be obligated to pay termination pay and deal with the other consequences of a termination.  This length of time may be extended beyond 60 days when:

1. an employer pays the employee wages or an amount instead of wages; or
2. makes payments for the benefit of the laid-off employee in accordance with a pension or employee insurance plan or similar plan.

In either case, the layoff period may only be extended if the employee agrees to such extension.  If you are considering this extension, we strongly recommend you get legal advice on proper implementation.

Note that, without previously, explicitly agreeing that layoffs will be available and will not be constructive dismissal, temporary layoffs could constitute constructive dismissal with employees since it is a drastic cut to their earnings.  This is a grey area of Alberta employment law.  Giving the required one or two week notice, or paying it out, reduces this risk.  Laid off employees should be able to apply for EI but will likely have a one week wait before it kicks in, unlike quarantined employees.  We urge employers to encourage employees to apply for EI and Alberta’s announced supplemental benefits as soon as possible, but to not indicate what benefits they will receive, if any.  To do so is to risk creating a promise than can be enforced.

These are complicated issues in a fast-changing environment.  While we will endeavour to keep you informed, we strongly recommend that you seek legal advice before undertaking any steps.  We are prepared to answer your employment questions and remind you that, as a full service firm, we have lawyers equipped to help with all other aspects of this time of change.

For more information on these topics or any other matters please contact one of the below lawyers from Bryan & Company LLP or access our Employment Law group here and it would be our pleasure to assist.

This article was prepared with the assistance of: