As we pass the one month mark in this unprecedented pandemic, CCPartners continues to see recurring themes that impact employers' abilities to respond nimbly to unexpected legislative changes and workplace challenges created by COVID-19. In this instalment of The Employers' Edge we take a look at some of these issues and provide guidance to employers on how they can better prepare for unexpected changes in their workplaces.
The Value of Employment Contracts
If COVID-19 has taught employers one thing it is the value of a well-drafted employment agreement. Millions of employees have been temporarily laid off in Canada as a result various provincial emergency response orders or declarations. Employers have relied on provincial employment standards legislation to initiate these temporary layoffs where they have either been forced to close as a non-essential business or they simply don't have enough work even if deemed an essential business. And while we hope common sense will prevail among decision makers if these layoffs are challenged by employees claiming they were constructively dismissed, the legality of initiating temporary lay-offs for non-union staff without a specific contractual right to do so remains an unanswered question during this pandemic. CCPartners continues to urge employers to consider the use of employment agreements for all non-union employees– not only to give employers the flexibility to layoff but also to minimize their legal obligations at the time of dismissal and clarify the rights and responsibilities of both the employer and the employee. Alternatively, employers should consider adding a layoff policy to their existing employee manuals and giving notice to employees of the new policy.
The Need for Comprehensive Working at Home Policies
Many of the questions CCPartners has fielded during this pandemic relate to rights and obligations when employees are asked to work from home. Since an employee's home work space is an extension of their workplace, employers need to ensure employees understand the importance of working safely and their obligation to work as if they were in their physical workplace during these uncertain times. Being able to monitor, assess and respond to remote work issues requires a well-written and comprehensive working from home policy. Clearly communicating expectations is the best way to ensure employees can work effectively and safely from home in circumstances where an employer is either required to close or cannot provide a workplace that allows for social distancing or other public health and safety measures.
Adequacy of Sick Leave, Vacation and Benefit Plans
Employers have had to take a hard look at their benefit plans in dealing with COVID-19. Many of our clients were without any kind of sick leave policy when COVID-19 struck and were left trying to adjust to the changing circumstances on the fly. Attempts to be generous in the beginning by keeping all employees whole even if they were not working or working full-time soon became an expectation that employers could not continue to meet financially. Without comprehensive policies in place many employers' responses were inconsistent or created workplace conflicts when applied in a manner that seemed unfair. Could an employer require employees to take paid vacation time, personal days or use lieu time if they couldn't provide them with full-time work or they believed that employees did not have enough work to work remotely? If employers initially paid employees who had to be off because they had been diagnosed with COVID-19 or had family members who had been diagnosed, were they required to continue to pay them as the pandemic wore on? Many of the answers to these questions depend on the language in workplace policies. CCPartners recommends that employers should make policy reviews a priority when the world finally "normalizes".
Develop a Business Continuity Plan
Many workplaces did not give consideration to how they would continue to operate in the unlikely event of an emergency. When the unlikely became reality in early March 2020 many employers were caught unprepared when they were forced by emergency orders to roll out work contingency plans. Employers are encouraged to devote resources to developing a business continuity plan with the benefit of hindsight COVID-19 provides when we reach the other side of this pandemic.
Investing in Financial and Legal Experts
Navigating the eligibility for federal subsidy programs, the application of SUB plans or Top-ups for CERB benefits and understanding how to successfully apply for same has underscored the importance of having trusted financial and legal advisors available to assist HR Departments and small businesses maximize the programs that will help ride out this pandemic. CCPartners has partnered with various financial experts to disseminate vital information to employers through our COVID-19 webinar series. Continuing to rely on experts as our economy starts to reopen will be important for employers looking to minimize liability and maximize the safe and healthy return of their workforces.
Whatever the future may hold when workplaces are allowed to resume regular operations, COVID-19 has forever changed the landscape of our social and workplace interactions. Employers would be well served to take stock of their workplace policies and practices and adjust to the "new normal" we will be experiencing when COVID-19 has finally been tamed.
Originally published 23 April, 2020
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.