Three things to think about as employers during the COVID-19 crisis

March 27th, 2020 by Michael Hackl

The COVID‑19 pandemic has led to significant changes in our daily lives as governments, businesses, and individuals all try to do what they can to slow the spread of the illness. ‘Social distancing’ has become a term that is familiar to all of us as we limit our physical interactions with one another, and adjust the ways we act when we do meet with others, all in an effort to respond to the advance of this illness.

One aspect of daily life that has changed dramatically for many of us as a result of the COVID‑19 crisis is the workplace. The provincial government has issued an order requiring all non‑essential workplaces to shut down, at least until early April and possibly beyond that. Even before that order was issued, many employers were shutting down their workplaces and requiring employees to work remotely. Further, many employers who are permitted to keep their workplaces open under the government order have nonetheless shut down their workplaces in favour of having employees work from home. And with the impact that COVID‑19 is having on many businesses, some employers are laying off employees.

For many employers, these steps will also raise legal questions and issues. As this whole situation is new to all of us, we expect that the responses to the crisis will raise novel legal questions that were not anticipated. But there are already some legal questions that are arising, and it would be wise for employers to give consideration to the legal implications of any measures they may take, as well as how to respond to questions or resistance from employees. With this in mind, we are setting out a few of the issues that we have already seen, so that you can consider them in making decisions on how to manage your employees through this crisis. This article is not meant to give you the answers as to how to address those issues – that is simply not possible in light of the many different circumstances that each different employer has to address. Instead, it is meant to give you an idea of some of the issues that you might face, to help you to be aware of what you might face, and to help you think about when you might seek professional advice about these issues.

1. Work from home

Decisions by employers to require their employees to work from home raise a number of possible issues. These include managing the transition so that employees cannot claim that the changes amount to a ‘constructive dismissal’ (a claim made by employees when the terms of their employment are changed unilaterally by the employer in a way that breaches the employment contract), ensuring that employees have the necessary tools to work remotely, managing the employees effectively when they are working remotely, adapting to the impact that these changes may have on employees’ ability to perform various tasks, privacy issues, and managing and responding to employee expectations as to their rights (for example, some employees may argue that they cannot be forced to work from home, or that if the workplace is shut down, the employer has to lay them off).

2. Social distancing in the workplace

If an employer has been deemed essential and decided to keep the workplace open, it will probably be necessary to implement a protocol to preserve social distancing as much as possible at the workplace. What steps will be necessary to ensure a safe workplace, and how will you respond if an employee refuses to work or to perform certain of their duties because they believe the workplace is unsafe? If you implement a protocol to maintain social distancing, how will you respond if an employee refuses to follow the new protocol?

3. Layoffs and Terminations

If an employer has determined that it needs to lay off some employees, there are also issues to consider. One of the most important questions is whether you have the right to lay off an employee in the first place; depending on the provisions of any employment contracts and the circumstances of your business sector, you may not be entitled to lay off an employee. It could be that by purporting to lay off an employee, you have actually terminated their employment. If you are entitled to lay off employees, there are other considerations, such as whether or not to continue benefits (in order to extend the length of the lay‑off that is permitted before it is deemed to be a termination). If a lay‑off is deemed to be a termination either because you do not have the right to lay employees off or due to the length of the termination, or if you have decided that you need to permanently downsize your workforce as a result of this crisis, how much notice and severance do you need to provide to the affected employees? Thinking of these issues in advance can help to prepare an approach that may minimize the cost of implementing these changes, and avoid situations where you find that you have terminated an employee who you only meant to lay‑off temporarily. If you do find yourself in a position where you need to lay‑off employees, you should also consider the various emergency programs that that federal government is implementing at this time as you may be able to implement the lay‑offs in a manner that mitigates the impact on the affected employees.

These are just a few of the considerations that employers should think about in deciding how to manage and adjust their workforce to respond to the current health crisis. Whether these issues, or other employment related issues, affect you as an employer will depend very much on the specific details of your situation. If you find yourself having questions about your legal rights and obligations in dealing with employees during this crisis, or even after we have returned to some measure of normalcy, we would be happy to help you identify the legal issues that you need to deal with and devise an approach that will let you minimize potential exposure as you move forward to meet your goals.



Filed in: Employment Law