COVID-19: Employer Guidelines
posted in: Commercial + Employment
The COVID-19 pandemic is having far-reaching effects both here in Alberta and around the world. As a result, all businesses will be impacted and must adjust. Such adjustments may have significant legal consequences.
Below is a brief guideline on potential employment issues that may have to be addressed during the COVID-19 pandemic. This information is not legal advice, and we recommend consulting with your legal advisors for advice that is specific to your situation.
Due to the impact of the pandemic, you may need to reduce your workforce. Temporary layoffs are one option for doing this but there are associated legal risks. Among other things, The Alberta Employment Standards Code places restrictions on the length of a temporary layoff and requires that employees be given advanced notice of such a layoff. Failure to comply with the formal notice requirements may trigger obligations for statutory and common law termination pay. Moreover, unless layoffs are expressly included in an employment contract, there is potential for employees to claim termination pay under the doctrine of constructive dismissal. When dealing with senior employees, termination pay might equate to many months of earnings.
We strongly encourage you to consult with a lawyer prior to reducing your workforce through temporary layoff or otherwise.
Working from Home
Under the current situation, an employer can request any employee to not come into work if that employee has symptoms consistent with COVID-19. Furthermore, it may be reasonable for an employer to restrict physical access to the workplace under the federal and provincial government’s self-isolation recommendations for individuals who have travelled recently or are otherwise at risk. Any accommodation to allow such a self-isolated individual to work would be advisable.
Due to the risks posed by the COVID-19 virus, you are likely to collect information relating to employee’s medical conditions. This information should be kept private and only used for the intended purpose of protecting employees. Most private employers will be governed by the rules codified in Alberta’s Personal Information Protection Act.
Occupational Health and Safety
Under Alberta’s Occupational Health and Safety Act, every employer has an obligation to ensure, insofar as is reasonably practicable, the health and safety of all the employer’s workers. This obligation may include a requirement to take preventative steps in light of an infectious disease such as COVID-19.
Any employer should carefully consider the potential risks associated with their unique workplace and evaluate what steps could be taken to alleviate those risks. Precisely what will be expected of an employer will depend on the nature of their workplace and what steps would be within reason. For example, some businesses may have more contact with the public, while others make use of shared tools and spaces. An employer should consider whether remote working is available to some or all their employees and evaluate what would be required to accommodate such.
Human Rights Issues
The Alberta Human Rights Code will also protect employees from any discrimination based upon certain characteristics, including disability. Potential liability can arise when an employer failed to accommodate a disability (including illness), terminates an employee who has contracted an infectious disease, targets a particular group of employees with questions about family and travel history, or terminates employment due to taking time to provide support for a family member who has contracted an infectious disease.
We recommend that employers should have a plan for both preventative measures (thorough and regular cleaning, hand sanitizer available, social distancing policies, permittance for remote working, policies if feeling ill, etc.) as well as responsive measures (making remote workplaces available, plans for how to deal with an infection, preparation for employees missing days or weeks, modifying performance expectations, etc.) in the event the virus reaches your workplace.
We also recommend an employer seek out legal advice specific to their situation prior to significant decisions regarding cutbacks to their workforce.
Times like these show employers why planning ahead makes so much sense. Documented employment contracts for all levels of employees can provide certainty for many of the issues you will be facing now, such as paid or unpaid leave, limiting severance obligations, allowing for temporary layoff or compelling work from home, limiting travel and temporary changes to a job description. While we can never anticipate every problem or scenario that can arise, we can work with you to deal with your immediate employee-related issues and to come up with a plan and documentation to anticipate matters in the future.