On April 6, 2020, fuelled by the continued impact of COVID-19 on workplaces across the province, the Alberta Government announced temporary changes to the province’s employment standards legislation – the Employment Standards Code (”ESC”). Further details were provided by Ministerial Order on April 9, 2020.  The temporary rules, which took effect immediately, are aimed at providing job protection for workers and flexibility for employers.  Highlights of these rules include:

Temporary layoff: The maximum period for a temporary layoff has been increased to 120 consecutive days (previously, the maximum was 60 days within a 120-day period). This change applies to any temporary layoffs related to COVID-19 that occurred on or after March 17, 2020.  In effect, employees will not be deemed to have had their employment terminated until day 121 of the layoff period (or on a later date if the layoff period is extended in accordance with the ESC, such as where it is agreed that the employer makes benefits contributions on the employees’ behalf).  

Normally, and unless certain conditions are met, a temporary layoff in Alberta of more than 60 days will result in the employee being deemed terminated. This latest change to the temporary layoff scheme improves the likelihood that employers will be in a position to recall workers before the temporary layoff period ends, and keep their workforces relatively intact.

Unpaid job-protected leave: Unpaid job-protected leave is available, retroactively effective March 17, 2020, to employees that are required to be off work in order to meet responsibilities in relation to:

• a family member who is under quarantine; or
• a child of the employee due to the closures of schools or daycares as a result of COVID‑19 effective March 16, 2020.

During the leave period, employees are protected from termination and layoff, and they must be reinstated after the leave (unless operations are discontinued or suspended). The 90 days of employment typically required to qualify for job-protected leaves under the ESC will not apply.  Also, the length of the leave is flexible and will depend on the circumstances of each case and the direction of the Chief Medical Officer.

The employer can ask for reasonable documentation to support the employee’s entitlement to the leave, but cannot ask for a doctor’s note.  If the employer requests supporting documentation, the employee must provide it at a time that is reasonable in the circumstances.  In many cases, this will likely be after the leave has started.

Shift Scheduling: To improve an employer’s scheduling flexibility during this unpredictable time, the requirement to provide 24 hours’ written notice of shift changes has been removed, as has the requirement to provide 2 weeks’ notice for temporary changes to work schedules of those employees working under averaging agreements.  In either scenario, notice will now simply need to be given as soon as is practicable in the circumstances.

These temporary changes allow employers to more adequately respond to the changing demands of their businesses due to COVID-19, and more easily implement occupational health and safety measures, such as physical distancing on their work sites by reducing the number of workers or staggering shifts.  This provides a useful tool for employers to respond to the often abrupt changes in safety and operational needs impacting the workplace.

Group termination notice: There will no longer be a requirement to provide group termination notice to employees and unions when 50 or more employees are being terminated within a 4‑week period.  This change reflects the practical reality that in the face of immediate effects to businesses as a result of COVID-19, most employers are not able to give the notice required ESC (8-16 weeks depending on the number of employees dismissed).  

Where a group termination occurs, employers must still give group termination notices to the Minister of Labour and Immigration as soon as possible, and employees will still need to receive individual termination notice (or pay in lieu).

Variances and exemptions: The government has committed to streamline the process for approvals of applications to modify employment standards in an individual workplace. Specifics of this commitment include the following:

• The Director of Employment Standards may now issue variances and exemptions on applications by employer associations or groups of employers. Formerly only the Minister could do so and the Director’s power to issue variances was restricted to single employer applications.
• In addition to the already existing rules for which the Director could issue variances or exemptions, the Director may now also do so with respect to notice of work times, rest periods (breaks), and days of rest.
• There is no longer an express 16-hour cap on a Director’s variance to section 16 of the ESC.  This means that potentially a variance could be issued permitting an employer to schedule employees for a period longer than 16 consecutive hours in any one work day.
• The list of mandatory considerations that were imposed on the Director and Minister of Labour and Immigration before issuing a variance or exemption does not apply to an application by an employer, a group of employers, or an employer association impacted by COVID-19.  Those mandatory considerations include the applicant’s compliance history relating to employment standards and occupational health and safety legislation, whether the application was supported by the union (if any) and the employees, and other considerations.

These temporary measures take effect immediately and will be in place as long as government determines they are needed and the public health emergency order remains in place.

The government press release coinciding with the announcement of these changes is available here and it includes links to related resources, including COVID-19 supports for employers and employees.

We will continue to update our clients with information as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s other COVID-19 website resources.