Posted: August 21, 2020

The global outbreak of COVID-19 has wreaked havoc on many businesses across Alberta. Businesses are facing incredible economic difficulty in attempting to keep their doors open, with many employers considering terminating employees. Here are a few things employers should keep in mind when considering whether to make cuts to their workforce:

1. Termination Pay

An employer is entitled to terminate employees at any time without cause as long as the employer doesn’t violate the employee’s other rights, such as under human rights or occupational health and safety legislation. Further, an employer is required to give proper notice of the termination, or payment in lieu of notice when termination without cause is effective immediately. Alberta’s Employment Standards Code sets out minimum requirements for the reasonable notice period or pay in lieu. The minimum requirements in the Code are based on the length of time the employee has worked for the employer. However, these requirements simply set out the minimum, and an employee may be entitled to more notice or pay in lieu at common law depending on his or her particular circumstances. 

Though the province has not implemented any changes to these rules as a result of COVID-19 as of the date of this article, it is unclear how the courts will calculate the reasonable notice period at common law for employees terminated during the pandemic. Therefore, employers should be cognizant that they must provide reasonable pay in lieu of notice, even if they terminate the employees due to economic reasons stemming from the pandemic. An economic downturn is not a sufficient reason on its own to terminate without notice or pay in lieu.

2. Temporary Terminations

Under the Code, employers can terminate employees for up to 60 days in a 120 period, but this has been temporarily extended to 120 consecutive days as a result of the pandemic. Employers should note the date that employees are given notice of their temporary layoff.  Failing to recall an employee before the expiry of the maximum layoff period can result in employment being effectively terminated, in which case the employer must provide termination pay as outlined above. 

3. Group Terminations

Normally, if an employer intends to terminate 50 or more employees within 4 weeks, special rules apply to the notice period requirement under the Code. As a result of COVID-19 however, the notice period requirement has been temporarily waived for group terminations which occurred on or after March 17, 2020. 

4. Refusals of Unsafe Work

Employers have a statutory duty to ensure the health, safety and welfare of employees in the workplace, under occupational health and safety legislation. This is context specific, and what is required to maintain a safe workplace will vary from one workplace to another. 

All employees have a right to refuse unsafe work, but any refusal must be reasonable in the circumstances. Employers must recognize that an employee may have a justifiable reason to refuse work, and should be cautious in their response to employees who refuse to work because they feel the workplace is unsafe for them in the circumstances. Terminating an employee who refuses to work because the employee reasonably feels the workplace is unsafe in light of COVID-19 is prohibited by occupational health and safety laws.

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Emery Jamieson LLP