Businesses continue to reopen during the second phase of Alberta’s Relaunch Strategy, but employers and employees are still impacted by significant financial challenges due to the ongoing pandemic. In response to common employment issues affected by COVID-19, the Government of Alberta introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020.
We addressed the initial changes to the Employment Standards Code on June 1, 2020. This post clarifies the latest amendments, including the COVID-19 Temporary Layoff Period Extension and what it means for you.
What is the COVID-19 Pandemic Response Statues Act?
Bill 24 was introduced on June 18, 2020, and received Royal Assent on June 26, 2020. The purpose of this legislation is to amend various statutes, including the Employment Standards Code which governs employment and labour in Alberta.
Specific amendments include:
- A broadening of powers of the Minister of Health (MOH) and the Chief Medical Officer of Health (CMOH).
- An extension of Ministerial Order No. 26/2020 which applies to health care and continuing care employers and employees.
- A further extension of the maximum period for temporary layoffs related to COVID-19 to 180 consecutive days.
How does Bill 24 impact employers & employees?
For the purpose of protecting public health, the powers of the MOH and CMOH have been broadened and are regardless of whether a state of public health emergency has been declared in Alberta. This means the broadening of their power applies even if the state of public health emergency is lifted.
Health Care & Continuing Care Workers
Ministerial Order No. 26/2020 limits health care workers to work for only one employer or at only one worksite and seeks to provide fair scheduling to allow workers to maintain their usual bi-weekly hours worked. It also provides job protection for health care workers who are no longer providing services during the state of public health emergency.
The extension of this order provided by Bill 24 means that the order applies until 18 months after it was set to lapse or otherwise end, which is anticipated to be February 14, 2022.
Temporary Layoff Period for Alberta Employees (2020) Extended
If employers have to lay off employees due to COVID-19, the temporary layoff period has been extended to a maximum of 180 consecutive days. Employment termination will only come into effect on day 181 of the layoff period (unless a further extension is allowed under the terms of the Employment Standards Code).
This means that employers are not obligated to provide termination pay until day 181 of the layoff period.
If the 180-day temporary layoff period is not feasible for the employer, there are options:
- Extend the temporary layoff period further by paying the employee benefits, wages or an amount instead of wages (by agreement with the employee).
- Transition the employee from a temporary layoff to an unpaid leave of absence (in collaboration with the employee). This may be an attractive option to both employer and employee with the extension of the CERB to the end of August because it allows employees to receive funds and gives the employer more time.
This applies to any temporary COVID-19-related layoff that is in progress as of June 18, 2020 and any COVID-19-related layoff that begins on or after that date.
Job-Protected Unpaid Leave Due to COVID-19
Of particular importance due to the CMOH’s mandatory isolation requirements, the Employment Standards (COVID-19 Leave) Regulation has been continued. This protects employees who must take an unpaid leave to:
- self-isolate or self-quarantine, or
- to care for a family member who is self-isolating or under quarantine, or
- to care for a child who is unable to attend school or child care services because of COVID-19.
This job-protected unpaid leave will remain in place until August 14, 2021.
All other temporary changes to the employment standards implemented by the Government of Alberta in response to the pandemic will end on August 14, 2020.
Avoid Constructive Dismissal Claims
These changes to the Employment Standards Code are helpful to employers who need more time to rebuild their business or who cannot afford termination pay. However, caution must be taken to avoid a constructive dismissal claim.
There should be a clause within your current written employment contract that gives the employer the right to temporarily lay off the employee. If such a clause does not exist, a temporary layoff could be deemed a constructive dismissal by the courts, resulting in costly wrongful dismissal charges for the employee.
Employers must also give employees 7 days’ notice of a return to work from a temporary layoff within that 180-day period.
The lawyers at Osuji & Smith closely monitor the COVID-19 situation and are prepared to assist you with any employment-related issues in this constantly evolving situation. If you have any questions about the current employment legislation, our Employment Law experts are here to help.