Federally regulated employers and the response to the COVID-19 pandemic

Many employers are confronting a crisis unlike one that they have ever previously experienced. This is a health crisis that is triggering an economic crisis. Not only must employers take action to keep their employees safe, those actions must preserve the financial stability of the company. Even in face of such extenuating circumstances, employers must be attuned to their legal obligations.

Federally regulated employers should understand their rights and obligations under the Canada Labour Code (“Code”) and its related regulations. These include requirements relating to health and safety, leaves of absence, notice of change of schedule as well as regarding the limits of temporary layoffs. We will briefly review each of these as they relate to non-union employees.

Health and Safety

Part II of the Code addresses health and safety obligations. Fundamentally, employers must determine whether there is a risk to employees, assess that risk and implement proper measures to prevent hazards in the workplace. In particular, an employer’s actions should include the following:

• Ensuring hand washing facilities and extra sanitizing gels in appropriate locations in the workplace, such as lunchrooms, washrooms as well as entrances and exits;
• Ensuring the cleanliness of hard surfaces, such as door knobs, hand railings, keyboards, computer mouse, etc;
• Increase the distance between employees’ workspaces; and
• To the extent possible, allow employees to work from home.

In a number of regions in the country, an employee will be entitled to exercise their right to refuse “dangerous work” unless the employer adopts safety measures to prevent the spread of COVID-19 in the workplace (including the measures above).

Leaves of Absence

Medical Leave:  Even if employees do not have access to paid sick leave in the workplace, the Code now provides that employees are eligible for up to 17 weeks of unpaid leave for personal illness or injury. Employees will qualify for medical leave if they have COVID-19, are experiencing any of the symptoms of the virus or where health care professionals recommend that the employee be in quarantine in order to limit the risk of contamination.

Personal Leaves:  Recent amendments to the Code also afford employees 5 personal days of leave (the first 3 of which are paid) to employees who have a minimum of 3 months of service. For example, the leave may be used to heal from an illness or in order carry out responsibilities related to the health or care of a family member.

Change of Schedule

COVID-19 has required employers to act quickly and change employees’ schedules as necessary in order to respond to new circumstances. Recent changes to the Code make that more difficult.

Specifically, effective September 1, 2019, federally regulated employers must give employees 24 hours’ notice of a shift change. However, it should be noted that the government’s interpretation guideline exempts certain classes of employees from the application of this provision.

Employers are also excused from providing the requisite notice if they are responding to an unforeseeable situation that presents an immediate and serious:

1. threat to the life, health or safety of any person;
2. threat of damage to or loss of property; or
3. threat of serious interference with the ordinary working of the employer’s industrial establishment.

This constitutes an extremely high threshold, but that threshold may be reached in certain circumstances in response to the pandemic.

Layoff or Termination

Many employers are confronting a financial picture that is quite different than it was even a couple of weeks ago. Those who are considering laying off employees must review the employees’ employment contracts to determine whether, and under what circumstances, temporary layoffs are permissible. As discussed below, the Code’s regulations permit temporary layoffs. In spite of this, absent a contractual term that allows the employer to temporarily lay off, such a layoff would constitute a constructive dismissal and may result in a claim of wrongful dismissal.

Even if the employment contract permits a temporary layoff, employers must ensure that the temporary layoff is in accordance with the Code’s regulations and exempted from the notice and severance obligations under the Code. The regulations specify that a temporary layoff does not constitute a termination (and notice and severance is not required) if, amongst other things:

• The temporary layoff of less than 3 months;
• The temporary layoff is longer than 3 months but less than 6 months and the employee is notified prior to the layoff or at the time of layoff of either
  • the specific date on which he or she will be recalled to work; or
  • the specific period during which he or she will be recalled (e.g. within a six month period). The employee must be recalled on that date or during that period in order to avoid a termination of employment under the Code (and the statutory notice and severance associated with the termination).

We understand that many of the issues being confronted by employers are exceptional and extremely complicated. We are here to help. For more information on this article and answers to other COVID-19 questions for federally regulated workplaces, please contact Ilan Burkes or Suzanne Kennedy.

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.

To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.