In line with the state of emergency declared earlier today in Ontario, Premier Jason Kenney declared a public health emergency in Alberta with the purpose of doing "whatever it takes to slow the spread of [the COVID-19] virus". As a result of this declaration, the following facilities have been ordered to close immediately:

  • Bars and casinos;
  • Public and private entertainment facilities, including gyms, pools, arenas, science centres, museums, theatres, art galleries, community centres, children's play centres, and bingo halls.

Additionally all events over 50 people are to be cancelled. While sit down restaurants can remain open, they must restrict attendance to 50% of their capacity or 50 people, whichever is lower. It was previously announced that all classes were cancelled and licensed childcare facilities, out of school programs and preschools were ordered closed indefinitely.

This declaration was made under Alberta's Public Health Act, which allows for a 30-day state of emergency, which may be extended to 90 days.

How can this happen?

The Alberta Government has the power to declare a public health emergency under the Public Health Act. Under the Public Health Act, a "public health emergency" includes the occurrence or threat of "an illness", or "an epidemic or pandemic disease" that "poses a significant risk to the public health".

In addition to municipal powers to declare emergencies, such as that declared by the City of Calgary, a public health emergency can be declared where there is a public health emergency or a significant likelihood of pandemic influenza which requires prompt coordination to avert or minimize the pandemic.

While this has been declared a public health emergency, the government also has broad powers under the Emergency Management Act to exercise various crisis control powers.

How can this affect employers

During a public health emergency, the Minister or regional health authority have broad powers to prevent, combat or alleviate the public health emergency, including:

  • The Chief Medical Officer may impose or authorize the absence from employment of any persons who are ill with pandemic influenza or are caring for an ill family member; and
  • Employers are prohibited from terminating, restricting or in any way discriminating against an employee for an absence from work where they have been subject to an isolation order or have been certified as infected in accordance with the Public Health Act.

Accordingly, Alberta employers considering terminations or layoffs should obtain counsel prior to implementing such decisions in order to mitigate against being offside the public health emergency legislation.

We have been ordered to shut down and I need to terminate or layoff my staff. Is this permitted?

Yes.

Under the Alberta Employment Standards Code (the "Code"), an employer may terminate an employee without notice or pay in lieu of notice if the contract of employment is or has become impossible for the employer to perform by reason of unforeseeable or unpreventable causes beyond the control of the employer. An employer that is forced to shut down in these circumstances, may fall into this exception to termination notice under the Code. However, although there may not be a remedy to an employee for termination notice under the Code, an employee may still have a claim for constructive dismissal at common law depending on the particular situation. This risk needs to be analyzed on a case-by-case basis as an employee's common law entitlements may pose a significant liability.

Further, employers may temporarily lay off employees for up to 60 days pursuant to the Code provisions. Typically a layoff notice of at least one or two weeks (depending on the employee's years of service) must be provided in advance of the layoff. However, in the event unforeseeable circumstances prevent an employer from providing written layoff notice to the employee, the employer may provide a layoff notice to employees as soon as practicable in the circumstances. There are limits to the use of temporary layoffs and they may result in allegations of constructive dismissal.  Again, these risks need to be analyzed on a case by case basis.

How long will a state of emergency last?

Under the Public Health Act, the state of emergency will last for up to 90 days. However, there are additional powers under the Emergency Management Act, which may be used to extend the state of emergency.

How does this interact with an employer's duties under OHSA?

In the event of a conflict between the Code, an emergency Order, and the Occupational Health and Safety Act or its regulations, the latter prevails. This means it is still on the employer to take every precaution to ensure the safety of workers, even where an emergency state is declared.

We are not shut down, but need employees to work longer in response to the COVID-19 pandemic. What should we do?

The Code limits working hours to no more than 12 in a day, however, there are limited circumstances where those hours may be extended, specifically:

  1. Where an accident occurs;
  2. To carry out urgent repair work to the employer's plant or equipment; or
  3. Other unforeseeable or unpreventable circumstances occur.

While employers can require employees to work in these circumstances, employees that are required to do so are entitled to overtime pay, unless exempt under the Code.

To learn more about workplace policies on communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.