As we reported in April, the Government of Alberta previously announced an extension of the temporary layoff period in Alberta's Employment Standards Code (the "Code") from 60 days to 120 days.
Recently, the Government of Alberta introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, which proposed amendments to various statutes, including the Code. Bill 24 passed third reading on June 25, 2020 and received Royal Assent on June 26, 2020.
The amendments to the Code further extend the temporary layoff period to 180 consecutive days for employees who are, or who have been, laid off "for reasons related to COVID-19".
This means that effective June 18, 2020, employees who were laid off at that time or who are subsequently laid off "for reasons related to COVID-19" will not be deemed terminated until the 181st consecutive day of the employee's layoff. Thus, an employer's obligation to provide termination pay would not be triggered until the 181st consecutive day of the employee's layoff.
Employers may still extend a temporary layoff beyond the 180 consecutive days by entering into an agreement with the employee where the employer continues to provide benefits, wages or some other amount during the layoff period. Another option for employers is to transition employees from a temporary layoff to an unpaid leave of absence. This would have to be done in collaboration with each employee. With the extension of the CERB to the end of August, an unpaid leave of absence is a potential win-win because the employee could continue to receive the CERB and the employer could avoid the 180-day clock.
Notwithstanding these changes to the temporary layoff period under the Code, employers will still need to keep in mind the potential risk of a constructive dismissal claim if they do not have a contractual right to temporarily layoff the employee.
Employers should also bear in mind that employees are to receive 7 days' notice of a return to work from a temporary layoff. This will need to be factored into the 180-day calculation.
As restrictions begin to lift and employers begin recalling employees from temporary layoff other questions may also arise. For example, what should employers do if an employee resigns after being recalled to return to work?
Originally published June 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.
