On June 18, 2020, the Government of Alberta introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 (“Bill 24”). The purpose of Bill 24 was to validate an earlier regulation, the Employment Standards (COVID-19 Leave) Regulation and to extend the temporary layoff timeframe pursuant to the Employment Standards Code (the “Code”) for up to 180 days for employees whose layoff was caused by COVID-19.
Temporary layoffs and the Code
At common law, in the event of being placed on temporary layoff, employees may have a right to a claim of constructive dismissal unless the employer:
- had a contractual right to implement the temporary layoff;
- operates in an industry where temporary layoffs are standard practice; or
- the employer can demonstrate the employee and the employer mutually agreed to the temporary layoff.
At first blush, the temporary layoff provisions in the Code can seem disconnected from the common law, as they appear to provide employers with the right to temporarily layoff employees.
However, it is important for employers to recognize that this is not the case; the temporary layoff provisions in the Code do not provide a separate entitlement for employers, but rather set out guidelines for temporary layoffs where a right to layoff already exists. As such, the proposed Code amendments to the timeframe for temporary layoffs should be approached with caution; a deemed termination may nevertheless occur despite that the applicable timeframe has not yet expired.
That said, the current factual context for employers in the midst of COVID-19 will undoubtedly lead to new decisions that will impact and possibly reshape the law on these issues. However, to date, we are not aware of any legal decisions that have addressed this specific situation in the current context, or a directly analogous one.
The Code initially permitted an employer, at leastfor the purposes of the legislation, to temporarily layoff an employee without triggering a deemed termination under the Code, so long as the layoff did not exceed 60 days in a 120 day period.
On April 6, 2020, the Alberta Government changed the provision by permitting a temporary layoff to last up to 120 consecutive days before being deemed a termination under the Code. The impact of this was, in essence, to double the potential duration of temporary layoffs under the Code.
Assuming Bill 24 passes through the Alberta Legislature and receives Royal Assent, effective June 18, 2020, employees who were laid off for reasons related to COVID-19 will only be deemed to have been terminated for purposes of the Code after being on layoff for more than 180 consecutive days.
Bill 24 also validates the Employment Standards (COVID-19 Leave) Regulation. The regulation provided employees with 14 days of unpaid job-protection leave if they were required to self-quarantine or self-isolate due to COVID-19. A temporary amendment was made on April 6, 2020, to provide employees with unpaid leave for the time recommended or directed by the Chief Medical Officer. This temporary amendment was due to expire 60 days after the province’s state of emergency expired or on June 16, 2020. However, following Bill 24, the Employment Standards (COVID-19 Leave) Regulation will allow employees to continue to take unpaid leave for family and childcare obligations up to August 14, 2021.
For further information on Bill 24 and how it may impact your workplace, we encourage you to reach out to any member of the Alberta Labour and Employment Team.
The COVID-19 situation is rapidly evolving with new measures being adopted or modified at both the federal and provincial level. Please consult our Coronavirus Resource Centre or contact any member of our DLA Piper Canadian Employment and Labour Law Service Group, who will ensure that you are acting upon the most up-to-date information.
This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.