The Impacts of COVID-19 on the Alberta Employment Standards Code

New workplace rules were announced by the Alberta government in response to the COVID-19 pandemic and will remain in effect until the public health emergency subsides. These new rules include changes to temporary layoff durations, notice requirements, and termination.

If you’re an employer or recently-terminated employee seeking legal guidance regarding the Alberta Employment Standards Code, we can help.

The lawyers at Ahlstrom Wright have extensive experience dealing with employment law in Alberta, Nunavut and the NWT.
Contact Ahlstrom Wright for more information.

Temporary Layoff Durations & COVID-19

In normal pre-COVID times, the maximum duration allowable for a temporary layoff was 60 days within a 120-day period. Any duration beyond 60 days resulted in the layoff becoming a termination. The Alberta government has increased the temporary layoff duration due to the COVID-19 pandemic: first to 120 consecutive days, and now to 180 consecutive days.

Therefore, if you have received a temporary layoff from your employer due to COVID-19 that was ongoing as of June 18, 2020, or occurs on or after June 18, 2020, the maximum allowable temporary layoff period is 180 consecutive days. On the 181^st day of consecutive layoff, your employment is considered to be terminated and to abide by the Code your employer must pay you termination pay in accordance with your length of service.

Notice Requirements—Adjustments During the Coronavirus (SARS-CoV-2) Pandemic

Typically, employers are obligated to provide notice of termination proportional to an employee’s length of service. Under the new workplace rules set out by the Alberta government, employers must provide employees with notice of termination which is “as reasonable and possible in the circumstances”. Considering the unprecedented COVID-19 situation, the court’s interpretation of required notice periods during a pandemic is not yet clear. Adequate notice could be decided in the employee’s favour by extending pay in lieu of notice – which would acknowledge the difficulty in finding new employment. On the other hand, the court could side with the employer by recognizing the impossibility of performing the employment contract in the current circumstances – also known as “frustration”.

Termination or ‘Getting Fired’ Due to COVID-19

Temporary layoffs lasting longer than 120 consecutive days are now considered termination of employment. Typically, employees are entitled to termination pay when notice is not provided, unless an employee is terminated with cause. These days, the effects of COVID-19 have caused some businesses to permanently cease operations resulting in termination of their employees without notice. While it is difficult to predict how the courts will deal with termination without notice due to COVID-19-related business closures, employers should be aware of provincial measures restricting employee termination, such as job-protected leaves. This type of leave, although unpaid, protects employees from termination for the duration they are away from work.

Caring for Self-Isolating Family or Children—Job-Protected Leaves

Job-protected leaves have been expanded to include those employees who cannot work because they now need to care for children who were normally attending day care or school, or those employees who need to care for an ill or self-isolating family member. The allowable length of this type of leave is flexible and a medical note is not required.

Bardal Factors

While the focus of this article is the impacts of COVID-19 on Alberta statutory regulations, it is important to note that reasonable notice of employee termination is also regulated by the common law. The “Bardal factors” outline the common law considerations for adequate notice. These factors include:

• Character of employment;
• Length of service;
• Age of employee; and
• Availability of similar employment having regard to the experience, training and qualifications of the employee.

Applying these factors to the employee termination notice period is advisable as the length of notice will vary depending on the circumstances.

Mitigation

On a final note, when an employee is terminated, they normally have a duty to mitigate their damages by actively seeking new employment. COVID-19 has significantly impacted hiring rates across most industries, so it remains to be seen what effect the pandemic will have on the court’s interpretation of this duty.

Whether you are an employee who’s recently been terminated or an employer facing a pandemic-related business closure, it is important to be aware of your legal entitlements and obligations under Alberta’s Employment Standards Code, the common law, and any pertinent employment contract.

If you have questions about your employment circumstances, contact Ahlstrom Wright. Our lawyers have extensive experience in both employment law and business law. We would be happy to conduct a free case review to discuss your current situation.