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Return to work considerations for Alberta employers

Employment Bulletin
08.05.20
By Bob Graham, Leslie-Anne Bowyer (Student-at-Law) and Yang Guo (Student-at-Law)

The Alberta government has recently released an overview of its relaunch strategy, which sets out the parameters for gradually reopening businesses and returning employees to the workplace. Although this will be a gradual process, employers are actively planning for employees to return to the workplace. The purpose of this bulletin is to outline key details of the relaunch, and to discuss important legal considerations for Alberta employers as they make plans to re-open their business or to bring employees currently working remotely back into offices and businesses.

Relaunch stages

Alberta's relaunch strategy will take place over three stages. Enhanced infection prevention measures, such as physical distancing requirements of at least two meters, will remain in effect through all stages. Progression through each stage will be based on the infection numbers and on the achievement of health measures to the satisfaction of the Chief Medical Officer of Health. In particular, the government will be monitoring hospitalizations and intensive care unit occupancy.

As of the beginning of May, some restrictions have already been lifted, including those applicable to outdoor recreation areas and some health-care workers. As the strategy proceeds through each stage, additional businesses that were previously declared to be non-essential will be allowed to resume operations. Employers must follow government guidelines and restrictions when re-opening. Employers with questions regarding re-opening should contact our Employment Law Group.

Throughout the first two stages, Albertans will be encouraged to wear a mask when unable to maintain physical distancing. Recent travelers, close contacts, and symptomatic people will continue to be subject to the current self-isolation and quarantine requirements.

Stage 1

Stage 1 of the relaunch strategy will begin as early as May 14. Restrictions will be lifted on the following businesses:

  • Some retail businesses, including clothing, furniture and bookstores.
  • All farmers' market vendors.
  • Some personal services, including hairstyling and barber shops.
  • Additional scheduled surgeries and dental procedures.
  • Cafes, restaurants, pubs and bars can reopen for public seating at 50% capacity, but people will not be able to go to the bar to order drinks, they will need to be served at the table.
  • Museums and art galleries.
  • Daycares and out-of-school care, with occupancy limits.
  • Summer camps, with occupancy limits (this could include summer school).
  • Post-secondary institutions will continue course delivery, but method (online, in-person or blend) will depend on the restrictions in place at each phase.

At this stage, gatherings will continue to be restricted to 15 people, employers are still advised to allow their employees to work remotely whenever possible, and Albertans will continue to be cautioned against non-essential travel within or between provinces.

Stage 2

There is currently no tentative date for Stage 2, as the timing will be determined based on the success of Stage 1 and other medical considerations, but upon reaching Stage 2 the maximum size for gatherings will increase and the following additional businesses will be allowed to reopen:

  • Potential opening of K-12 schools, with restrictions.
  • Additional personal services, including artificial tanning, esthetics, cosmetic skin and body treatments, manicures, pedicures, waxing, facial treatments, massage and reflexology.
  • Restaurants, cafes, lounges and bars continue operating at reduced capacity.
  • Movie theatres and theatres, with restrictions.
  • Larger gatherings will be permitted in some situations (number of people to be determined).

Stage 3

Progression to Stage 3 will be determined by the success of the previous two stages. Physical distancing requirements will continue to be in place, but most of the remaining restrictions will be lifted at Stage 3 including wearing masks, and undergoing self-isolation and quarantine. Stage 3 will involve the following:

  • Fully reopening all businesses and services, with some restrictions.
  • Larger gatherings will be permitted (number of people to be determined).
  • Arts and culture festivals, concerts and major sporting events will be permitted, with restrictions.
  • Nightclubs, gyms, pools, recreation centres and arenas will reopen, with restrictions.
  • Industry conferences can resume, with restrictions.
  • No restrictions on non-essential travel.

Occupational health and safety

The following information provides an overview of the COVID-19 workplace guidance provided by the Alberta government. Employers are highly encouraged to review the full occupation health and safety guidelines here.

All employers have a legal obligation under occupational health and safety legislation to create and maintain a safe and healthy workplace for all employees. Employees also have a responsibility to take reasonable care and to cooperate with their employer to ensure the health and safety of themselves and others at the workplace. Maintaining a safe and healthy workplace in the COVID-19 environment requires employers to conduct an assessment of workplace hazards, and then implement reasonable preventative measures to minimize the likelihood of employees being exposed to or transmitting COVID-19. Employers are also required to take steps to ensure that employees are aware of the preventative measures in place, and of their own obligations to maintain a safe and healthy workplace.

Communication and hygiene

For the purpose of maintaining quick and effective communication with employees, employers should maintain an up-to-date contact list for all staff. To enable effective contact tracing in case of infection, employers should also record the names and roles of employees working at all locations on any given shift. If a workplace has patrons within two meters of employees, a list of patrons by time and date should also be maintained.

To maintain workplace hygiene, employers should:

  • Promote and facilitate frequent and proper handwashing by providing sanitizer or handwashing stations at points of entry and at locations where goods are handled.
  • Encourage coughing or sneezing into the elbow and prompt disposal of used tissues.
  • Place posters in prominent locations to remind staff and patrons to practice hand and respiratory hygiene.

Cleaning and hazard assessments

As noted above, employers have an obligation to conduct a hazard assessment in the workplace. In addition, employers should develop enhanced cleaning and disinfecting protocols for the workplace, particularly for high-contact and shared locations such as doors, light switches, faucets, and elevator buttons. Employers should also make disposable wipes or spray cleaners available to facilitate frequent cleaning. All communal items that cannot be easily cleaned, such as shared magazines and newspapers, should be removed.

Employers must perform assessments to identify COVID-19 related hazards. Where elimination of the hazards is not possible, employers must control the hazards using the following measures:

  • Engineering controls such as placing physical barriers between staff, restricting general access to the workplace, and increasing ventilation.
  • Administrative controls such as implementing policies for physical distancing, limiting hours of operations, and providing adequate supplies for hygiene.
  • Personal protective equipment such as gloves, eye protection, gowns, face protections, and masks as appropriate.

A combination of the above controls may be necessary to protect employees depending on the specific work environment and on the specific tasks being performed by the employee.

Physical distancing

Businesses are not prohibited from having more than 15 workers in a workplace, but employers must ensure that they are supporting physical distancing between staff and between staff and visitors to reduce transmission. This could include the introduction of the following measures:

  • Restricting the number of people in the business at one time.
  • Installing physical barriers and increasing separation between desks.
  • Eliminating non-essential gatherings such as meetings or holding them in teleconference or videoconference format.
  • Remove chairs from shared spaces to discourage large gatherings, or staggering break periods.
  • Implementing contact-free modes of interaction.
  • Taping markers to show 6-foot distances.

Screening/dealing with symptomatic employees

Common symptoms of COVID-19 include, but are not limited to, the following:

  • Fever
  • Sore throat
  • Cough
  • Runny nose
  • Difficulty breathing

Employers must take reasonable steps to ensure that any employee who is exhibiting any of the symptoms of COVID-19, or who is otherwise sick with cold or flu-like symptoms, or who is living in a residence with another person who is exhibiting any such symptoms, does not come into the workplace. This means that employers must communicate to all employees before any return to work that they are strictly prohibited from being in the workplace if they are experiencing any such symptoms or are living in a residence with another person who is exhibiting any such symptoms. Such individuals are required to self-isolate in accordance with Alberta government guidelines.

If an employee comes to work exhibiting any such symptoms, or begins to exhibit any such symptoms while at work, the employer should take the following steps:

  • The employee should be removed from the workplace immediately and instructed to begin isolation at home in accordance with government guidelines.
  • The employer should make arrangements for the employee to get home safely from the workplace without using public transportation, as may be required for the specific employee.
  • After the employee has left the workplace, the employer should immediately clean/disinfect any work areas where the employee had recently been present.
  • The employer should record the names of all other employees that the sick employee has been in contact with in the 48 hours prior to exhibiting symptoms, as the employer may be required to provide such information to provincial health authorities if the employee later tests positive for COVID-19.

Employers are not required to, and should not attempt to, conduct testing for COVID-19 on employees. Such testing can only be carried out by trained medical professionals. Rather, employers need to ensure that all employees are aware of the requirements set out above, and otherwise carefully monitor employees in the workplace for any symptoms. Employers should also ensure that employees understand that they will not suffer any negative consequences for acknowledging that they are experiencing such symptoms and having to isolate at home as a result.

Additional workplace health and safety resources relating to COVID-19 are available here, including specific guidance for individual industries. Alberta Health Services has also published extensive information on infection prevention and control.

Recalling laid-off employees

Many employers have been required to temporarily lay-off employees as a result of COVID-19. As the government restrictions are slowly relaxed and the economy begins to open up, employers will be calling many of these employees back to work. There are a number of legal considerations for employers to keep in mind.

Under the Alberta Employment Standards Code, provincially regulated employers are required to serve a written recall notice on an employee, via mail, in person or via email. To ensure that employees have received the recall notice, employers are advised to speak with each employee to advise of the recall, and then follow up by immediately serving the written recall notice on the employee. A recall notice must state that the employee must return to work within seven days of the date the recall notice is served on the employee. Employers can request that an employee return to work in less than seven days, but cannot require the employee to do so.

If an employee fails to return to work within seven days of being served with the recall notice, the employee is not entitled to termination notice or termination pay if the employer decides to terminate the employee's employment as a result of the employee's failure to return to work in accordance with the notice.

Human rights considerations

If an employer will be recalling some, but not all, laid-off employees, the employer must be careful not to violate any human rights legislation. In deciding which employees to recall, an employer is prohibited from discriminating against any employee on the basis of a protected ground in the Alberta Human Rights Act (the Act). Protected grounds in the Act include age, gender, physical or mental disabilities, family status, race, ethnicity and place of origin. Federal human rights legislation includes very similar prohibited grounds. Quite simply, any protected or prohibited ground cannot even be taken into consideration by an employer in deciding what employees will be recalled. For example, if an employer decides to not to recall an employee in part because that employee has a history of health problems, the employer will be in violation of the Act.

The closure of schools and daycares may also create challenges for employees who have school-aged children. If an employer recalls an employee who has young school-aged children, that employee may not have the ability to immediately return to work on a full-time basis due to the fact that schools are closed and other child care options are very limited. Employers will need to make reasonable accommodations for employees who have legitimate child care responsibilities, whether such employees are being recalled from a lay-off or have been working from home without having been laid-off. Such accommodations may include allowing an employee to work from home where possible, and adjusting an employee's work hours or work schedule to accommodate child care responsibilities.