Return to Normal: How to Prepare for Resuming Business Operations01-May-20
by the McLennan Ross Labour & Employment Team
Most workplaces have needed to dramatically adapt their operations due to the COVID-19 pandemic. In our earlier articles, we have provided suggestions for how employers should manage their business during the pandemic, including best practices around layoffs.
Although the length of the pandemic is currently unknown, we know the Government of Alberta and other governments are now implementing plans to re-open the economy. Alberta’s approach begins now (the start of May) with the next phase tentatively set for May 14. Additional phases will depend on the health conditions and use of resources in the province. Employers should have policies and strategies to facilitate the transition back to normal operations. Planning now will help you protect your organization and your employees and ensure that you minimize costs.
Recalling employees from layoff
The provincial government has extended the period for which you can temporarily lay employees off to 120 days. Unless employees agree otherwise, you will be deemed to have terminated the employee’s employment after 120 days of layoff.
We addressed these changes in an alert on April 6, found here. This extended temporary layoff period (and other changes) expires and returns to 60 days on the earliest of the following dates:
- August 14, 2020;
- 60 days after the state of public health emergency is terminated (it is set to expire on June 15, 2020, unless renewed or terminated earlier);
- When the Minister of Labour determines that the relaxation is no longer in the public interest, which is too early to say right now; or
- When cabinet terminates the Order providing the relaxed rules.
We expect the new Employment Standards provisions will continue at least until the summer; however, employers should be mindful of when their layoffs will reach 120 days, whether employees might be needed sooner, or whether the layoffs will need to be extended.
An employer can extend a temporary layoff if an employee agrees in exchange for some payment or continuation of benefits. If not addressed at the time of initial layoff, employers should consider what they intend to provide to employees in exchange for this extension and communicate to employees in order to obtain agreement. If not previously communicated, it would probably not be necessary to communicate about extending the layoff until the employer has a good idea of whether that will be necessary.
To recall an employee who was laid off, you must serve the employee written notice stating they must return to work within 7 days (starting on the date you served the notice). You can serve the notice in person, by mail, by leaving it at the employee’s home, or by email.
Unless your collective agreement states otherwise, the employee then has 7 days to return to work. If an employee fails to do so, you can terminate without notice or pay. If not already done, you should ensure you have the right contact information for employees before you will need it.
Your rights if the employee refuses to return to work
If employees choose to leave their employment altogether, they must give you reasonable notice. The amount of notice necessary will depend on a number of factors, such as the employee’s position, length of service, and responsibilities, as well as the difficulty of finding a replacement. If the employee fails to give reasonable notice, and you incur damages (which surpass the money you saved by not having to pay their salary), you are entitled to sue the employee (that would likely only be warranted in unusual cases).
You may wish to recall some employees as soon as possible; however, you must recognize employees’ responsibilities toward dependents. Schools and daycares are shut down, which means many employees are juggling work with their parental obligations. Furthermore, some employees will need time off to care for dependents who have contracted COVID-19. The new family leave entitlements related to COVID-19 remain in effect. In addition, if you fail to accommodate such responsibilities, you may breach human rights legislation.
The obligation to maintain a safe workplace is more important than ever, and clear safety protocols should be in place to maintain physical distancing at work and limit any risks of exposure to COVID-19. A starting point is that employees who have been exposed to others with COVID-19 should not be returned to work or brought into contact with the rest of the workforce until 14 days have elapsed. Employees should not be returned to work if there is a risk of them exposing others to COVID-19. If your workplace has not already addressed operational risks relating to physical distancing, workplace hygiene, and employee communications, it is essential to do so before resuming operations. McLennan Ross has previously issued alerts on this topic, and we are hosting a webinar on May 5, 2020 in respect to OHS issues related to COVID-19. For more information on this webinar, please click here.
How to modify terms of employment
Employers can reorganize their employees’ duties and responsibilities to a certain extent without modifying the underlying employment contract. Therefore, you do not need to give the employee the exact same work as before — doing so may be difficult depending on the nature of your business and your transition back to normal operations. Provided the employee is doing similar work and the contract remains unchanged, altering the employee’s duties is acceptable.
However, you should be conscious that modifying the terms of an employee’s contract could constitute a constructive dismissal — a change that alters the contract to such an extent that the employee is effectively dismissed and entitled to termination notice or pay. What constitutes constructive dismissal will vary depending on the contract, but could include putting a salaried employee on commission, or significantly reducing hours or pay. Lowering or eliminating bonuses might also constitute constructive dismissal depending on the circumstances. We have addressed these risks related to COVID-19 in a previous alert on March 16, 2020, found here.
If an employee does not object to changes in a timely manner, the employee will be deemed to have accepted the changes. Therefore, you might consider disclosing changes and seeing how the employee reacts. Given the current economic challenges and unemployment rates in mind, employees have proven to be more receptive to and understanding of reductions in their compensation and changes to duties, particularly if these the need for changes are carefully communicated by employers. Employees are also mindful that a resignation followed by claims for constructive dismissal will typically trigger a duty to mitigate on behalf of the employee, requiring them to take reasonable and active steps to seek new comparable work.
However, if the employee refuses to accept changes, there are a number of strategies that may be used, including advance notice of the changes, imposing the changes anyway, or terminating employment. The proper approach will be fact specific, and it is advised to obtain legal advice about how to avoid risk when modifying your employees’ contracts.
We are hosting a webinar on May 7, 2020 at 12:00 MST to cover issues relating to returning to work. To register, click here.
We continue to monitor the current situation closely and will provide updates as new developments arise. Please contact any member of our Labour & Employment team if you have any further questions.