April 30, 2020
While the world is still reeling from ongoing COVID-19 concerns, many provinces have announced plans to relax public health restrictions put in place when the global pandemic locked down most of the Country. Government officials have said that any reopening of the economy will be a phased one. For employers, this may mean the opportunity to resume business in some capacity but it may also require some employers to make difficult decisions around their business operations on a go forward basis.
At McInnes Cooper, we understand that these are still very uncertain times and know that it is impossible to predict how businesses will perform in a post-COVID-19 world or whether there will be another wave of the disease that will have additional impacts on our economy. It is therefore crucial for employers to develop a plan that provides for a ramp up period and contemplates a future surge in COVID-19 cases and reinstatement of restrictions, all while outlining how they will protect the health and safety of their employees. To help our clients navigate the challenges of the next phase of the pandemic, we have compiled a number of points for employers to consider in preparation for the new normal:
1. What if I cannot bring back all of the employees I had before Covid-19?
There is no obligation to rehire all the employees you had prior to COVID-19. Similar to the lifting of government restrictions, your approach to the resumption of business will also likely be incremental in nature.
Permanent Reduction of Workforce. Depending on the restrictions that remain on your business or the general state of the economy, you may already know that you will need to make a permanent workforce reduction. As an employer, this means that you will need to take steps to legally end the employment relationship of the affected employees by advising the employee of the termination and providing them with any outstanding monies owing as well as any other statutory or contractual entitlements upon termination. The process for determining employees’ entitlements upon termination is not one that should be taken lightly as the risk for legal claims or statutory complaints may be heightened in a post-COVID-19 world where an employee’s ability to find alternate employment may be limited for an extended period of time. We recommend seeking legal advice with respect to these terminations.
Maintaining Temporary Layoffs. On the other hand, there may be employees who were temporarily laid off who you may not be able to recall immediately but who you would like to maintain on such status in hopes of recalling them at a later date. In this case, you need to be very careful to manage employees’ expectations of recall and be aware that where the layoff extends beyond a statutorily prescribed period, it may become a deemed termination and trigger termination obligations.
Employees on COVID-19 Leave. It will also be important to consider whether any of your employees who are off work are caught by the protection of any communicable disease emergency leave provisions that were enacted in response to COVID-19 or that otherwise exist. The protection and eligibility for these leave provisions will vary from jurisdiction to jurisdiction but they generally provide that an employee cannot be dismissed because they availed of the protected leave. That is not to say that a protected employee cannot be dismissed for other justifiable reasons; however, it will require the employer to be more cautious in their approach to such dismissals as they may become the subject of a statutory complaint.
Unionized Employees. For unionized employers, recall from layoff for those employees you do bring back is typically governed by the terms of the collective agreement.
2. What are my obligations to the employees I can bring back?
To the extent possible, employees returning to work should be returned to the position they held prior to the layoff or leave with the same level of compensation and benefits. Failure to return an employee to the position that they held or any other fundamental change to the employment relationship may give rise to a claim for constructive dismissal or a grievance under a collective agreement. This is particularly important to keep in mind for an employee who qualified for communicable disease emergency leave and who, by virtue of the statutory protection, may avail of a statutory complaint process.
With that in mind, it will be very important to have open communication with employees to manage their expectations about their return to work. As the lifting of restrictions and the resumption of your business will likely be incremental, it will be important to communicate that your return to work plan must be gradual and that, at least in the short term, there may be reduced hours, alternate schedules and deferred vacations requests.
In situations where employees’ reduced hours mean that they earn less than one thousand dollars a month, it may still be possible for them to avail of the Canada Emergency Response Benefit (“CERB”) to supplement their income while getting back to work. While there is no specific obligation for employers to advise their employees of personal tax implications of having been in receipt of CERB you may wish to remind them that the income will be taxed at the end of the year and that they may want to consider having additional federal tax deducted from their pay.
3. Will I be required to implement additional health and safety measures in the workplace?
Employers must take reasonable measures to ensure that employees are protected against workplace hazards. As part of a return to work plan, you will likely be required to show that you are capable of resuming operations while adhering to public health requirements and recommendations.
In complying with applicable occupational health and safety laws as well as public health requirements, employers will be required to put reasonable controls in place to safeguard their employees against workplace hazards. What is reasonable in the “new normal” will depend on the nature of the workplace but could include:
It is important that employers continue to inform employees and keep them updated about COVID-19. As always, employers must ensure that any updates are based on credible sources like Health Canada or your provincial government. Employers must also continue to monitor public health directives, strictly adhere to public health orders and implement any subsequent public health restrictions.
4. What if an employee refuses to return to work citing fears of unsafe work or exposure to Covid-19?
If your business has been permitted to re-open and you are implementing all public health requirements and recommendations, your employees should be confident that the workplace is safe and an unreasonable refusal to perform safe work may result in discipline.
However, an employee has a “right to refuse” work when they reasonably believe that workplace conditions are unsafe. In these circumstances, an employer is obligated to investigate and address the safety issue.
A refusal due to COVID-19 safety concerns requires the employer to consider the employee’s specific concerns, and determine whether they are “reasonable” and it can (or has) address them through remedial measures, such as social (or physical) distancing; increased sanitation regimes; availability of infection control materials (for example, personal protective equipment and hand sanitizers); restricting site access, and prohibiting site access to those experiencing symptoms. If an employee persists in a refusal the employer doesn’t find to be reasonable, the employer must follow the processes required by the applicable occupational health and safety legislation, which might include the involvement of a health and safety committee and/or government regulator.
In the event that an employee is immunocompromised or has another legitimate concern regarding their individual health and the safety of the workplace as it pertains to them personally, their refusal may be reasonable despite the employer’s application of remedial measures. The employer should consider whether it’s feasible to allow the employee to implement or continue with a remote working arrangement, or otherwise excuse the employee from attendance without pay. This situation could also engage the employer’s duty to accommodate the employee, but only if the employee’s pre-existing condition or vulnerability is a disability or other personal characteristic protected by human rights laws.
5. What if an employee requests to continue to work remotely?
As noted above, continuing a remote working arrangement may be required under occupational health and safety or human rights laws in certain circumstances. However, if you are not required to grant the request, it is at the discretion of the employer to permit an employee to continue to work remotely. If feasible, employers should consider applying such requests with greater leniency (in the short term at least) in light of the advice from public health officials with respect to social distancing, which will likely be an ongoing feature of our daily lives for the foreseeable future. In particular, we note that as governments announce their phased approaches to ease public health restrictions, employers should consider a similar phased approach to bringing employees back into the workplace, if possible, by having some employees continue with remote working arrangements while others are brought back into the workplace.
6. What should I do if an employee returns to work and presents with symptoms of COVID-19?
It will still be very important to monitor and adhere to all public health recommendations or requirements and amend your policies for reporting to work accordingly. It is anticipated that, until a vaccine is widely available, the “new normal” will include public health directives to reduce the spread of COVID-19 and physical distancing will likely be key for a significant period of time to come.
To this end, employers should direct employees not to report to work if they have symptoms associated with COVID-19, to contact their local public health authority, and to self-isolate until health officials indicate that they are not a risk to spread the virus. Employees who report to work with symptoms should be sent home immediately. Employers should also seek direction from public health officials with respect to any co-workers who may have been exposed to such employees, which may result in the removal of other employees from the workplace.
7. What are the most important things I can do to protect my business on a go-forward basis?
Written Employment Contracts. The ongoing COVID-19 pandemic has underscored the importance of well drafted and properly implemented employment contracts. An employment contract is often an underutilized tool that can help an employer avoid or resolve disputes throughout the employment relationship. Returning to the “new normal” is an opportunity for employers to reflect on whether they are adequately protected from legal risks arising from the employment relationship. If you do not currently have employment contracts or you are not sure that the contracts you do have offer adequate protection, then it would be advisable on a go forward basis to have new employment contracts drafted and implemented for all new hires. In reviewing your employment contracts, it is especially pertinent that the contracts contemplate layoff and termination and provide both the employer and employee with clarity on obligations and/or entitlements.
Employment Policies. Employment policies supplement an employment contract and offer both employers and employees direction on how to proceed or respond in a particular situation. While we have always recommended that employment policies be reviewed and revised, if necessary, on an annual basis, the COVID-19 pandemic acts as a reminder that we cannot always predict how the law, our businesses or the world will evolve. This highlights the need for your employment policies to be continually reviewed and revised to ensure that they accurately reflect the realities of our new normal. In particular, we note the deficiencies that may now exist in current policies around reporting for work, leave and accommodation requests, vacation, and workforce reduction in situations of voluntary or mandated temporary shutdowns.
Remain Flexible. While the easing of restrictions is a positive sign, the “new normal” remains a rapidly changing concept and it is important for employers to plan ahead and plan for the unexpected. To this end, employers should be flexible in their operations and be ready to adapt should there be a new wave of COVID-19 and restrictions put back into place. We recommend that employers remain up-to-date with COVID-19 so that they are ready to respond in this ever-changing environment.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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