Canada: Attention Alberta Employers: Temporary Changes To Employment Standards Legislation

On April 6, 2020, the Alberta government issued a Ministerial Order to enact temporary changes to the province's employment standards legislation, with the stated intention of providing job protection for workers and flexibility for employers during the COVID-19 pandemic.

Alberta has been in a state of public health emergency since March 17, 2020. On March 17, 2020, the government amended employment standards legislation to introduce an unpaid, job-protected leave of absence for employees in self-isolation or self-quarantine as a result of COVID-19 (you can read more about that in our earlier blog post here). Since this announcement, the pandemic has continued to have a significant impact on the Alberta economy, with Alberta now having the highest unemployment rate in Canada. According to a government statement, the changes announced on April 6 are intended to help Alberta employers respond appropriately to the evolving public health measures, and to allow employees to remain employed while being able to access to the assistance programs implemented by the federal government.

Job-Protected Unpaid Leave to Care for Family Members

Employees who are unable to work because they are caring for: (a) their child due to the closure of schools or daycares as a result of COVID-19; or (b) a family member who is under quarantine due to COVID-19, will be entitled to an unpaid, job-protected leave of absence. The leave will be for a period of time recommended or directed by the Alberta Chief Medical Officer to meet the employee's responsibilities related to the persons in their care. This is very similar to the job-protected leave of absences recently introduced in British Columbia and Ontario.

Unlike other protected leaves of absence under the Employment Standards Code (e.g. personal and family responsibility leave), there is no requirement that an employee be employed for at least 90 days to be able to access this temporary leave of absence.

Employers can ask employees for reasonable proof of eligibility for this leave of absence, but cannot ask the employee to provide a medical note as proof.

This leave is retroactive to March 17, 2020. This means that employees who are already off work due to one of the eligible situations set out above, will be eligible to take this leave of absence.

More Flexibility in Scheduling

Effective April 6, 2020, Alberta employers will temporarily have more scheduling flexibility. During this pandemic, employees will often not be able to give their employers much advance notice (if any) that they need to isolate or quarantine, or that they need to care for an ill family member. For this reason and others related to COVID-19, many employers are having to deal with last minute scheduling changes.

To help employers quickly adapt, the government has temporarily removed the requirement that employers gives employees 24 hours' written notice for shift changes. Employers are also temporarily not required to give two weeks' notice for changes to work schedules for employees working under an averaging agreement. Instead, in both cases, notice must be given "as soon as is practicable in the circumstances".

Less Onerous Group Termination Notice Requirements

The Employment Standards Code requires that employers provide notice if they intend to terminate the employment of 50 or more employees at a single location within a four week period. This group termination notice requirement ranges from 8 to 16 weeks, depending on the number of affected employees. These notice requirements have been temporarily removed.

Effective April 6, 2020, the only group termination notice requirement is to give notice to the Minister of Labour and Immigration "as soon as is practicable in the circumstances" and to specify the number of employees being terminated and the effective date of the terminations. The provisions of the Employment Standards Code dealing with individual termination notice remain unchanged and continue to apply.

Extended Temporary Layoffs

Employers can now temporarily layoff employees for an extended period of time. Previously, employers could only temporarily layoff employees for one or more periods not exceeding 60 days within a 120-day period (with an ability to extend in certain circumstances). Under these temporary changes, employers can now layoff employees for up to 120 consecutive days. After 120 consecutive days, the layoff is considered a termination of employment unless the employer makes regular payment to or on behalf of the employee (e.g. wages, employee pensions or benefits) and the employee agrees to these payments in lieu of a firm limit of the length of the layoff, or there is a collective agreement binding the employer and employee containing recall rights for employees following layoff. This extension applies to all layoff notices given on or after March 17, 2020.

Streamlined Process for Applications for Variances or Exemptions

Effective April 6, 2020, there is a more streamlined process for seeking approval for modifying employment standards rules (known as variances and exemptions), to allow employers to respond more quickly to changing conditions in light of COVID-19. For example, employers can apply for a variance to extend the rules regarding consecutive days and hours of work. The Director of Employment Standards and the Minister of Labour and Immigration now have more flexibility to make variance or exemption orders.

Duration of the Changes

It is important to note that these changes are temporary measures enacted in light of COVID-19, not permanent changes to the Employment Standards Code. The government has announced that these changes will be in place for as long as the government determines that they are needed and the public health emergency order remains. According to the ministerial order, they will remain in place until the earliest of: when the order is considered no longer in the public interest, 60 days after the state of emergency is lifted (if lifted before June 15, 2020), or August 14, 2020. These temporary changes can also be extended by an order under the Public Health Act, if required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.