Answers to Questions Asked During COVID-19 Workplace Readiness and Pandemic Planning Webinar

On March 17, 2020, our Labour & Employment team presented a Webinar on Workplace Readiness and Pandemic Planning. A recording of the Webinar can be purchased here. Following the Webinar, we compiled the questions asked by our viewers by topic.

This publication answers those questions or directs our viewers and clients to recent information published on the McLennan Ross LLP COVID-19 Resource Website (accessible here).

The Labour & Employment team at McLennan Ross LLP welcomes employers’ questions and can guide employers through any issues that may arise at their workplaces as they navigate the COVID-19 pandemic.

COVID-19 Leave (Alberta)

The Government of Alberta has now issued the Employment Standards (COVID-19 Leave) Regulation that we have been awaiting since the unofficial announcement last of a new leave related to COVID-19. For more details on the COVID-19 Leave, please refer to our publication of March 18, 2020, found here.

Workplace Safety

We have received a number of questions related to an employer’s obligation to provide a safe workplace under occupational health and safety (“OHS”) legislation.

For an in-depth discussion on an employer’s general OHS obligations and what to do if an employee refuses unsafe work in the COVID-19 pandemic, please refer to our publication of March 20, 2020, found here.

For a discussion on what to do and what your obligations as an employer are if an employee tests positive for COVID-19, or if an employee comes into close contact with a person who has tested positive for COVID-19, please refer to our publication of March 20, 2020, found here.

For those questions not yet answered by our team during the webinar, we respond as follows:

1. What safety measures should employers have in place and is there any safety equipment that should be added such as N95 masks?

Employers must perform a hazard assessment to identify existing and potential hazards at a work site. Part 2 of the OHS Code outlines minimum hazard assessment requirements. Employers should eliminate a hazard wherever they can. When elimination is not possible or reasonable, an employer must control the hazard (which sometimes requires an employer to provide safety equipment).

There is a hierarchy of controls that must be followed:

• First choice: engineering controls. These control a hazard at the source. Depending on the workplace and processes, examples might include ventilation systems or physical barriers, such as plexiglass.
• Second choice: administrative controls. These change the way people work. Examples include worker training or hand hygiene, social distancing, alternate work arrangement or regular workplace cleaning policies.
• Third choice: personal protective equipment (“PPE”), which controls the hazard at the worker. PPE examples can include gloves, eye protection, face masks or respirators.

Employers may need a mix of engineering and administrative controls and PPE to protect workers. Effective controls for workplace hazards depend on site and task-specific factors.

For instance, at work sites where workers have a high risk of exposure to infectious droplets and/or airborne hazards – such as health care settings – respirators may be part of the control mix. Other work environments may not require the same type of controls for hazards associated with a respiratory virus. Employers need to do a risk assessment to determine what controls would be most appropriate at their specific work site. For more information on hazard assessment and control in the context of respiratory viruses click here.

2. Would a workplace be considered a “gathering”?

A state of emergency was declared in Alberta on March 17, 2020, under the Public Health Act. As such, the Alberta Government has directed that many public facing businesses such as bars and nightclubs, recreational and entertainment facilities close or, in the case of restaurants and other food serving facilities, operate at a lower capacity. Also, all events, such as weddings, religious gatherings, or funerals, over 50 people were directed to be cancelled.

Although a workplace is considered a “gathering” in the traditional sense of the word, the restrictions imposed by the Alberta Government do not apply to all businesses generally or to employers with more than 50 employees. Employers should take steps to limit the spread of COVID-19 in their workplaces. For example, employers should be implementing social distancing protocols, personal hygiene requirements and procedures, and assessing whether all or some employees can work remotely.

We expect that if the Alberta Government intended to reduce capacity at worksites or privately held facilities, a more explicit directive would be required. As of today, we have no information that would suggest the Alberta Government will take steps to reduce the number of employees that may be permissible at a single worksite.

Labour Relations

We received the following questions related to unionized worksites. Our response follows.

1. What do we do if a union advises workers to stay home?

A worker may refuse to work over concerns about the presence of the COVID 19 virus at a workplace. Under section 31 of the OHS Act, workers have the right to refuse dangerous work. However, this right is qualified and must be exercised by following the procedural steps in the legislation and within the wider context of the employer and worker duties under OHS Act. For a discussion on a worker’s right to refuse unsafe work, please refer to our publication of March 20, 2020 which can be found  here.

Outside the OHS context, there is no broad right for employees to refuse to work en masse, either independently or on the advice of their union. The Labour Relations Code (Alberta), prohibits unionized employees from engaging in an unlawful strike. A strike may be unlawful because the preconditions to a legal strike have not been met. Actions that constitute a strike include: declarations of not attending work; refusals to work overtime, whether or not the overtime is voluntary; refusals to do certain work in purposeful reliance on the collective agreement, often called “work to rule”; slowdowns of work; and mass call-ins (improper use of sick leave). For more information on illegal strikes, see the Alberta Labour Relations Board publication attached here.

A well-developed work stoppage management plan is usually a subset of an overall business continuity plan. A work stoppage may occur suddenly and without notice. If an employer becomes aware that a union is advising its employees to stop coming to work, employers should be preparing contingency plans on how it will maintain services or operations during a work stoppage.

What is important to remember is that the employer/employee relationship continues during illegal work stoppages. Employers should be taking steps now to communicate their pandemic plans and information related to their expectations on employee attendance at work. An employee that refuses to attend at work and does not have a reasonable or legitimate reason for doing so, may be subject to discipline.

Additionally, in the context of a wide scale illegal work stoppage, employers should be especially vigilant when evaluating requests for time away from the worksite in order to determine which of those absence requests are for a legitimate purpose.

In addition to any steps an employer may be taking in respect of its employees, employers should be communicating its expectations with the union directly. The union should be advised that employee absences from the workplace will be assessed on a case by case basis and in accordance with the employer’s COVID-19 pandemic plan. 

Work stoppages at the direction of the union can be complex issues to navigate and often require intervention from the Alberta Labour Relations Board. Our team at McLennan Ross LLP is able to assist on these matters and provide guidance to employers in these circumstances.

2. Can employers subject to a collective agreement and mandate workers to take accrued time?

An employer should consult the applicable collective agreement to determine whether mandating a worker take accrued time is permitted. If a collective agreement is silent on this issue, employers may have the ability to rely on their general management rights to direct that workers take accrued time off. One consideration when determining if that type of action is permissible is whether such practice has occurred in the past, and if so, in what circumstances.

If an employer does mandate a worker take accrued time, an employer should ensure that they are acting in accordance with the Employment Standards Code (Alberta) when doing so. We recently published an article on the employment standards related to mandating a worker take certain accrued time off here. Generally, it is good practice to give employees notice of when the employee needs to take accrued time (such as banked time or vacation time). The employer should approach employees, explain the business circumstances, and attempt to obtain agreement from the employee that accrued time will be used at a specific time.

Layoffs and Terminations

We have received numerous questions regarding temporary layoffs and terminations. As always, for employers that are party to an applicable collective agreement, those procedures should be applied. Otherwise, we have previously provided information on temporary layoffs and group terminations, frustration of contract, and issuing Records of Employees, in the following articles:

• COVID-19 - Frequently Asked Questions by Employers, March 16, 2020, found here.
• Alberta Government Issues Regulation on Employment Leave for COVID-19, March 18, 2020, found here.
• Proper Coding when Issuing an ROE, March 19, 2020, found here.

One question not previously answered by our team is, “What does an employer do if it has a need to layoff someone already in isolation?”

The Government of Alberta has now issued the Employment Standards (COVID-19 Leave) Regulation. The COVID-19 Leave provides employees an entitlement to an unpaid leave for 14 consecutive days if an employee is under quarantine related to COVID-19. For more details on the COVID-19 Leave, please refer to our publication of March 18, 2020 found here.

The COVID-19 Leave Regulation does not specify any terms related to an employer’s ability to terminate or lay off an employee on the COVID-19 Leave. As it is a job protected leave, we suspect that employers may not terminate or lay off an employee who has started COVID-19 Leave. This would be consistent with how other job protected leaves under the Employment Standards Code (Alberta), for example Compassionate Care Leave, provide employees with protection from termination and layoff.

However, the prohibition against terminating or laying off employees would not apply if an employer suspended or discontinued in whole or in part the business, undertaking or other activity in which the employee was employed.  In those circumstances, an employer would have an obligation to reinstate the employee (if possible) or provide the employee with alternative work of a comparable nature. If operations are suspended or discontinued in whole or in part during the employee’s leave, the employer is only obligated to reinstate or offer alternative work if operations resume within 52 weeks following the end of the leave.