This article was revised to include the most recent provincial travel updates as of May 28th, 2020. While the term “unprecedented” is being used frequently in the context of the COVID-19 pandemic and the measures that have been taken in response to it, one context where the word can legitimately be applied is the restrictions […]read more
COVID-19 – How Employers Can Manage the Workplace in These Uncertain Times
As the number of confirmed cases continues to rise, the growing impact of COVID-19 is being felt with each passing day. We know that things are changing rapidly and we want to ensure you have the information you need for dealing with COVID-19 in the workplace.
Symptoms of COVID-19 in the Workplace
If an employee attends work exhibiting symptoms of COVID-19, immediately ask the employee to vacate work premises. Any surfaces that the employee came into contact with should then be thoroughly disinfected. Any employees who came into contact with the symptomatic employee should be asked to monitor themselves for symptoms and self-isolate if they begin to exhibit symptoms of COVID-19. Employers should allow self-isolating employees to return to work if they have tested negative for COVID-19 or after two weeks if they no longer exhibit symptoms of COVID-19.
To slow the spread of Coronavirus and attempt to prevent an outbreak in the workplace, governments are strongly encouraging employers to allow employees to work from home, if they are able to. Prior to implementing these changes, employers should conduct testing to ensure that their information technology infrastructure will support large numbers of employees working from home. Employees who are unfamiliar with working remotely should be provided with sufficient training and instruction to ensure that they are able to do so.
While the term “social-distancing” has now become part of all of our vocabularies, employers should take steps to ensure it is practiced in the workplace. The consistent recommendation from health authorities is that employees should maintain a distance of approximately 2 meters (6 feet) from each other. All non-essential meetings or employee gatherings should be suspended. Employees should be advised that in-person meetings should be replaced with video or teleconferencing, where possible.
At this point, the ability to travel is significantly restricted by border closures and, in any event, employers should restrict non-essential business travel to attempt to limit the spread of coronavirus in the workplace. Any employees who have travelled internationally on or after March 13, 2020 should be required to self-isolate and remain away from the workplace for a period of two weeks. Employees who travelled internationally before March 13, 2020, should self-monitor and remain home if they experience symptoms of COVID-19. Additionally, employers should require all employees disclose to the employer any personal travel plans, to any area outside the province. Employees may wish to consider requiring employees who travel outside the province to self-isolate for 14 days upon their return.
Federal Work-Sharing Program
If your workplace is feeling the impacts of COVID-19 due to a reduction of business, you may wish to consider applying for the federal government’s Work-Sharing program. The Work-Sharing program aims to help employers avoid layoffs and provide employees with income support during times of temporary reduction in normal business activity that is outside of an employer’s control. The employer must maintain all existing employee benefits for the duration of the Work-Sharing agreement.
Work-Sharing is available to employees eligible for Employment Insurance benefits and requires that employees agree to a reduced schedule of work. Employers and employees must apply for the program together (with union involvement, if applicable). In response to the COVID-19 outbreak, the federal government has waived the mandatory 30-day waiting period for Work-Sharing agreements and has extended the number of weeks that benefits may be received from 38 weeks to 76 weeks. These special measures will remain in effect until March 14, 2021.
To be eligible for the program, employers must be involved in a year-round business in Canada for at least two years. This includes private businesses, publicly held companies, or not-for-profit organizations. A business must be experiencing a recent decline in sales or production levels of at least 10%. An employer must be able to demonstrate that the recent decline is directly or indirectly related to impacts of the COVID-19 outbreak and that the work shortage is temporary and beyond the employer’s control. In order to be eligible, the decline cannot be due to a recurring slow-down. Finally, employers must be willing to submit a recovery plan outlining measures that will be implemented to support the on-going operation of the business.
In order to be eligible for the Work-Sharing program, employees must be eligible to receive Employment Insurance benefits. Employees involved in the program must be year-round, permanent employees, and may be full or part-time as long as they perform the main functions of the business. Those employees eligible for the program are those which comprise the employer’s “core staff”. Finally, employees in a work-sharing unit are employees who agree to reduce their normal working hours and share the work that is available at the workplace.
Other Federal Measures
The Federal Government has announced $82 billion in funding to help people and businesses affected by COVID-19. Some of the measures this funding will go to include:
a) Temporarily boosting Canada Child Benefit payments.
b) Putting in place an Emergency Care Benefit designed to provide workers who do not qualify for Employment Insurance benefits with up to 14 weeks of support comparable to EI. This temporary benefit is intended for people who are ill, quarantined, self-isolating, or caring for a sick loved one.
c) Putting in place an Emergency Support Benefit intended to help individuals who do not qualify for EI because of the nature of their work. This would include self-employed individuals who have had to close due to the outbreak.
d) Implementing a temporary wages subsidy for small businesses that will cover up to 10 percent of worker salaries for up to three months.
e) Deferring income tax payments to August.
Lay-off for Lack of Work
Unless lay-offs are specifically addressed in a written employment contract or collective agreement, there is a risk that temporarily laying-off employees will trigger a constructive dismissal or a grievance. Employees who are subject to a temporary lay-off may later assert that they have been constructively dismissed and that they are therefore entitled to receive compensation for their lost wages and benefits during the period of the lay-off. Although this is a risk, in the light of the impacts of the COVID-19 pandemic, many employers are left with few options and there are arguments that employers can make to push back against any allegations of constructive dismissal, in the event that a claim is made.
Notwithstanding the risks set out above, in the event that an employer is required to partially or fully cease operations as a result of the effects of COVID-19, the Employment/Labour standards legislation in each province requires employers to provide notice of layoff in writing. The amount of notice (or pay-in-lieu of notice) varies in each province and depends on the circumstances and the amount of time that the employee has been employed with the employer. However, as discussed below, each province’s Employment/Labour standards legislation has certain exemptions to the requirement to provide notice of layoff that may apply to employers affected by COVID-19.
In New Brunswick, an employer can temporarily layoff an employee without notice where:
a) there is a lack of work, due to any reason unforeseen by the employer at the time notice would otherwise have been given, and for such period as the lack of work continues due to that reason; or
b) for any reason, for a period of up to six days.
The circumstances of COVID-19 that we are presently dealing with in New Brunswick would fall under the first option and, as a result, the legislation permits employers to temporarily lay-off employees; However, if the lay-offs will involve 25% or more of employees in a particular location, the employer is obligated to provide the Minister of Post-Secondary Education, Training and Labour with written notice of the lay-off.
In Nova Scotia, employers are also required to provide notice to the government in the event of a lay-off of multiple employees. Generally, notice of mass lay-offs must be given to the Minister of Labour and Advanced Education. However, Nova Scotia’s Labour Standards Code provides for exemptions to the requirement to provide notice, two of which likely apply to circumstances arising from COVID-19:
a) the employees are discharged or laid-off due to a downturn in work from circumstances beyond the control of the employer, despite exercising due diligence (this may be particularly applicable to employers in the food and drink industry, who have been advised to cease in-person operations), and
b) the employer has provided reasonable alternative employment (this may apply to situations where an employer has offered reduced hours through the Work-Sharing Program, so as to avoid employees being completely laid-off).
In Prince Edward Island, there are three exemptions to the requirement to provide notice under the Employment Standards Act which may apply to circumstances arising from COVID-19:
a) a person who is terminated or laid off for any reason beyond the control of the employer, including the inability to obtain supplies or materials or the cancellation or suspension of, or inability to obtain, orders for the products of the employer, if the employer has exercised due diligence to foresee and avoid the cause of termination or lay-off.
b) A person who is terminated or laid off because of actions of any governmental authority that affect directly the operations of the employer.
c) The employer has provided reasonable alternative employment.
Employers are required to issue a Record of Employment to any laid-off employees. Employees who are laid off can apply for Employment Insurance benefits.
Employers may wish to provide top up payments to employees on lay-off due to a temporary stoppage of work or sickness as a result of COVID-19. A supplementary unemployment benefit (“SUB”) plan can be established by the employer to top up employees’ Employment Insurance benefits during a period of unemployment in these circumstances.
In order to ensure that these top-ups are not subject to employment insurance deductions, SUB plans should be registered with Service Canada. A link to Service Canada’s SUB plan registration requirements is here.
We understand these are trying times for businesses in Atlantic Canada. Cox & Palmer remains available and committed to providing quality advice to all businesses faced with navigating these uncharted waters. Please contact our legal team regarding any issue affecting your business.