As COVID-related restrictions begin to be lifted, employers are properly focused on ensuring that their workplaces and workforces are prepared for reopening. However, there is some suggestion that full or partial reclosings, followed by subsequent reopenings, may need to occur until a vaccine is developed, mass immunity exists, or sufficient treatment methods are implemented. As they plan for reopening, employers should also take this opportunity to reflect on their processes, examine their readiness, and determine what changes are required to seamlessly navigate in a post-COVID environment or a second—or third—wave of COVID-19.
In this last installment of The Canadian Employers’ Reopening Playbook, we identify common challenges employers faced at the onset of the pandemic and provide guidance on how employers can be better prepared to minimize the impact of our changed environment or a subsequent wave of COVID-19.
Employers Should Reassess Existing Policies
Employers should review and develop policies, practices, and procedures to account for uncertainties that may stem from COVID-19. We recommend reviewing the following policies, practices, and procedures to see where additional flexibility can be built in:
- Leaves of Absence and Vacation Policies: First, employers should review leave-related policies to ensure that they address and are compliant with recently-introduced COVID-19 leaves. Second, employers should also consider whether leave-related policies cover the current realities of COVID-19, such as leaves for employees with childcare and/or eldercare responsibilities. In reviewing leave-related policies, employers should consider increasing the amount and flexibility of leave entitlements and/or allowing employees to use vacation as paid sick leave to help mitigate the risk of COVID-19 in the workplace. Third, to the extent possible, policies should provide clear rules for any non-statutory leaves of absence, so that both parties understand their rights and obligations. Finally, employers should consider revising vacation policies to clearly identify a right to deny vacation requests or to mandate vacation, in order to manage employee expectations.
- Remote Working and Flexible Work Arrangement Policies: Recent news suggests that many employers have considered extending, or making permanent, work from home arrangements. Since it appears that a full return to office environments is unlikely to occur in the near-term, employers should review and/or have in place a clear remote working and/or flexible work arrangement policy. The policy should outline the employer’s expectations around issues such as hours of work and time tracking, overtime, confidentiality, home office insurance and liability, a procedure for monitoring work product, performance expectations, expectations when attending virtual meetings including dress code, and reserving a general right to return the employee to the office. Having a comprehensive policy ensures that both the employer and the employee are aware of their obligations when working remotely.
- Health and Safety Policies: Employers should review workplace health and safety policies and ensure that they address any government and/or public health requirements and recommendations, including physical distancing, use of personal protective equipment, hygiene and sanitization requirements, and more. Health and safety policies should also be revised to reference the increased responsibilities that workplace parties, in particular, managers and supervisors, have once employees return. In reviewing these policies, employers should turn their minds to developing protocols for work reassignments, deep sanitization procedures, and other full or partial reclosing measures that may need to be invoked if an employee or other visitor to the workplace tests positive for COVID-19 in the future.
Employers Should Reassess Employment Agreements
Employers should review and amend existing employment agreements to include enforceable provisions on termination, lay-off, COVID-19 related leaves, force majeure, and the right to change compensation, hours of work, and job duties.
It is important to note that modifying existing employment contracts may require consent, consultation, and/or consideration. Employers should consult legal counsel before implementing any changes to existing employment agreements to evaluate the impact of the proposed changes and the risk of wrongful dismissal and/or human rights claims.
Be Prepared for Financial and Personnel Changes
Employers should also be proactive and consider likely financial and personnel implications of a second or third wave of COVID-19.
Eligible employers should consider setting up a Supplementary Unemployment Benefit Plan to top-up employment insurance (EI) benefits in the event of subsequent lay-offs. Supplementary Unemployment Benefit Plans related to temporary stoppages of work, training, illness, injury or quarantine need to be registered and approved by Service Canada. As such, registering the plan now may allow eligible employers to bypass procedural steps in the event of a second or third wave.
If faced with a difficult decision regarding financial and personnel changes, employers should also consider whether a Work-Sharing Agreement would be appropriate. The federal Work-Sharing Program may be available when there is a temporary decrease in an employer’s normal business activity that is beyond the control of the employer, in that it is not: (i) related to a labour dispute; (ii) a seasonal or other recurring shortage of work; or (ii) related to an increase in the employer’s workforce or other decisions by the employer. Employees participating in the Work-Sharing Agreement accept a reduced schedule, share the available work (including a prorated share of any new work that becomes available), and receive EI benefits as income support. For a work-sharing arrangement to qualify under the federal program, the reduction of work over the duration of the agreement should be, on average, 10% to 60% of the employee’s normal schedule. In response to COVID-19, the federal government has introduced temporary special measures, including a shortened application process, an extended benefit period, and more inclusive eligibility requirements. At this time, it is unclear how long these special measures will be in place, so employers who are considering a Work-Sharing Agreement may want to take action sooner, rather than later, to have the agreement approved by employees (or the union) and the government.
The economic impact of COVID-19 is far-reaching. Employers may find that they need to make cuts to operate in the changed environment. When considering personnel reductions, employers should be alive to mass termination and deemed terminations provisions under applicable employment standards legislation, which vary from province to province and, in some provinces, have been temporarily amended to address COVID-19.
As provinces begin reopening their economies, employers must consider business continuity in the short-term and the long-term. During these uncertain times, employers should be proactive and use this opportunity to figure out how they can best adapt existing business processes to operate resiliently in the changed environment.
Do you have more questions? Join us for our webinar, where we will dive deeper into reopening workplaces during COVID-19. For more detail and to register, please click here.