On April 30th , the Government of Alberta rolled out its phased approach to restart the Alberta Economy after the COVID-19 pandemic shut down most businesses in mid- March. Over the course of the next few weeks and months, businesses will be able to reopen provided they implement strict protocols for protecting employees and the public. Employers need to start thinking about a variety of issues as Alberta’s reopening strategy unfolds.
First, are you legally allowed to open?
The Government of Alberta has proposed a multi-stage approach, beginning May 4th, which will allow resumption of some non-urgent surgeries, and office re-openings for dentists, physiotherapists, speech and respiratory therapists, social workers and dieticians. Some businesses still require protocols to reopen through their professional associations. Golf courses will also be allowed to open, though clubhouses and pro shops must remain closed. This will be followed by an additional 3 stages, with the first as early as May 14th. The Government of Alberta website provides a detailed breakdown of this plan and what businesses are included in each phase. For an in depth look at Alberta’s plan to reopen, please visit: https://www.alberta.ca/alberta-relaunch-strategy.aspx
While this plan may let you know when you, as a business owner, can reopen, most employers and employees have many other things to consider. It is critical that employers tread carefully when making this decision, recognizing that the laws around health and safety, human rights, privacy and the basic tenets of employment law must be adhered to.
Employer Compliance with health and safety and public health requirements
Until an effective vaccine for COVID-19 become available, employers will need to continue taking all reasonable steps to ensure that their workplaces are compliant with public health guidelines and requirements as well as their obligations to protect the health and safety of employees as is required under OHS legislation in Alberta and other provinces.
Consequently, employers should be examining all aspects of their workplaces (ergonomics, hygiene, health, legal, etc.) and putting together a return to work plan in consultation with appropriate health and legal professionals. These return to work plans will be detailed and will require much thought and consultation. Please contact me to help draft a legally compliant return to work plan.
COVID Employee Testing and other screening methods
Can we test our employees for COVID-19 and /or take an employee`s temperature when they arrive at work?
These types of tests and how they may be carried out (if at all) raise a variety of privacy and human rights issues, requiring careful examination and a balancing of the rights and obligations of both employer and employees. Many questions need to be answered prior to implementing any testing protocols at the workplace. Will employees need to “consent” to such testing? What if they refuse? Will employees be entitled to pay while waiting on site to be tested? Will employees be entitled to pay if sent home?
It is best to consult with an experienced employment labour lawyer who can guide you through this process and help draft those policies to ensure you are onside legally.
What happens if an employee tests positive for COVID-19 or shows symptoms or is coming back to work post-infection or from abroad?
It is absolutely critical to have proper protocols and policies in place for each of these types of scenarios. It is also critical to ensure that all employees are aware of the policies and know what to do if they find themselves in one of these situations. Although employers have already faced such situations prior to the shutdown, having proper protocols in place will be critical in minimizing the risk of transmission and future outbreaks, in order to avoid future shutdowns and a loss of production.
Recalling employees from Temporary Layoff
There are strict requirements as to what must happen when recalling an employee back to work after a temporary layoff under the Employment Standards Code in Alberta. If the employer does not follow those legal requirements, they could find themselves with increased liability and owing termination pay at a minimum and potentially common law severance. This can be very costly. Also, employers will be well advised to establish procedures for selecting employees to be recalled that do not conflict with applicable legislation and which minimize the employer’s exposure to possible human rights or other employee claims. This is not the time to discriminate against certain employees when deciding who to recall, as it is likely the courts and the Human Rights Commission will have little patience for employers in this regard. Please consult with an employment lawyer when making these decisions and notifying employees.
Employee refusals to return or to remain at work
Employees have certain limited statutory rights to unpaid leaves under the Employment Standards Code, but these are not indefinite or unlimited and will not apply to many situations where employees refuse to return to the workplace. It can be expected that many employees will feel uncomfortable and will simply refuse to come back to work for safety related reasons. Employers who have taken all appropriate measures in compliance with public health requirements and followed best practices will have satisfied their duty of care towards their employees under the OHS legislation in Alberta and done their due diligence. That being said, employers need to be prepared to deal with these situations in an empathetic and legal manner.
Remote working
Many employers have adjusted to remote working and some employees may prefer working from home for the time being purely from a safety perspective. Aside from having to adjust HR and recruitment strategies, employers will want to ensure that they have appropriate remote working policies in place, and that existing policies are updated to allow employers enough control over employee productivity and employer proprietary information.
Reviewing and updating human resources policies
Employers should implement, revise and update existing workplace policies given our “new normal”. Of particular importance would be policies regarding occupational health and safety, and rules related to public health guidelines and requirements, including physical distancing, proper hand-washing hygiene, proper work methods and material handling, temporary layoff policies, leave of absence policies, and remote work policies etc.
Updating new hire employment agreements and revising employment agreements for existing employees
As recent events have shown, employers need the maximum amount of flexibility possible in reacting to situations like global pandemics and their impact on operations. All existing and new employment contracts should be reviewed and revised as needed, allowing employers to navigate through similar situations. Clauses incorporating temporary layoff provisions should be incorporated. These changes absolutely need to be done with the advice of an experienced employment lawyer as there is increased liability for drafting these agreements and ensuring that they are enforceable. Please contact me to discuss your needs.
There are a multitude of issues that employers and employees must be aware of over the next few months. With legal assistance and due diligence on the part of both employer and employees, a gradual safe return to work for all can be accomplished.
