Changes to Alberta Employment Standards

In recognition of the unusual impact COVID-19 is having upon employers and employees, and the need for some of the normal workplace rules and expectations to be relaxed, the Alberta Minister of Labour has just announced this afternoon a Ministerial Order that temporarily alters the provisions of the Employment Standards Code and Employment Standards Regulation:

• A new unpaid leave of absence has been created for employees who need time off from work because they are caring for children affected by school and daycare closures or self-isolated family members. The 90-day employment requirement to qualify for this leave is waived, and a medical note is not required. Employers are entitled to make certain inquiries in dealing with requests for this new family leave. Employees are protected from termination and layoff while on this leave, though there is normally an exception in cases where an employer suspends or discontinues part or all of its operations.
• Employers can now temporarily lay off employees for up to 120 days before termination is deemed to occur (and termination or group termination pay is required). The temporary layoff period was previously 60 days of layoff within any 120-day period. This is a sensible change since employers are seeing the restrictions on their ability to operate extending to what may easily be more than 60 days (and now hopefully less than 120 days). Extensions beyond 120 days are still possible with employee agreement.
• The group termination provisions do not apply. These provisions required enhanced termination notice to affected employees, any unions, and the Minister of Labour when 50 or more employees are terminated from a single location within a 4-week period, as follows:
  • 50 – 99 employees: 8 weeks
  • 100 – 299 employees: 12 weeks
  • 300+ employees: 16 weeks

These provisions, which became effective January 1, 2018, were punitive to employers facing a need for significant downsizing. When such large reductions in a workforce are required, employers are rarely able to provide such advance notice, and the financial cost is excessive at a time when employers can least afford it. These impractical consequences are particularly apparent in the face of COVID-19, and we have had many employers telling us that having to provide group termination in the current circumstances would be financially ruinous to them. The only requirement now is that notice to the Minister of Labour still must be provided, as soon as practicable, when 50 or more employees are being terminated.

• The 24-hour written notice requirement for changes to schedules does not apply. Employers have had to respond to many scheduling challenges in the face of COVID-19 for various reasons, such as:
  • staggering workforces for the purposes of physical distancing;
  • responding to fluctuations in work demands; and
  • responding to workforce fluctuations as employees are unable to attend work on short notice.
• The 2-week written notice for temporary changes to averaging agreements will not apply. These provisions have been very cumbersome and inflexible for general scheduling, and those problems have been exacerbated by COVID-19.
• Provisions on variances have been revised to make them easier to obtain. Variances are permits that allow relaxation of certain employment standards for individual workplaces. They are used where a need can be demonstrated in a given workplace. COVID-19 has resulted in many unique situations that require adjustments to the normal standards that would apply, and making it easier to obtain variances removes red tape so that employers can respond to the current crisis in a timely way.

The changes are effective as follows:

• The new family leave and the extension of the period for temporary layoffs are effective March 17, 2020; and
• The other changes are effective as of the date of the Ministerial Order, April 6, 2020.

Although most of these changes would be sensible on a permanent basis, for now they will only last for as long as the COVID-19 crisis continues. The changes are a welcome relief to employers and very much needed. They will also be welcomed by employees struggling with child and family care needs