Alberta's labour law response to COVID-19

This post was previously published on the Canadian Law of Work Forum.

Alberta has enacted several temporary changes to its Employment Standards in response to COVID-19, including expanding unpaid leaves and making it easier for employers to alter working conditions and lay off workers. Alberta’s Workers’ Compensation Board has also established some preliminary guidance regarding the compensability of injuries and illnesses caused by COVID-19. Alberta has also delayed and partly waived workers’ compensation premiums for employers.

Employment Standards

On March 5, the COVID-19 Leave Regulation came into effect, which provided 14 days of unpaid leave if a worker was under quarantine for COVID-19. There was no requirement for a medical note or for 90 days of service to access this leave, conditions which are standard requirements to access Alberta’s 2017 provisions for unpaid job-protected leave under s.53.97 of the Employment Standards Code.

The COVID-19 Regulation also waived the one-week notice of return requirement. Workers remained entitled to the 16 weeks of unpaid leave for illness, injury or quarantine, under s.53.97 of the Code with the usual service and medical note restrictions.

On April 5, 2020, additional and temporary changes to Employment Standards were enacted. These changes were authorized by a Ministerial Orders and included an unpaid, job-protected leave for employees who must care for children, either due to school or daycare closures or illness or self-isolation of family members. No service or medical note is required.

The government also waived employers’ obligations to:

• Provide 24 hours of written notice of shift changes.
• Provide two weeks of notice to changes of work schedules for those under overtime averaging agreements.
• Provide workers and unions with 8 to 16 weeks of notice of terminations of 50 or more employees (individual notice or pay in lieu entitlements remain unchanged).

Employers may now also:

• Temporarily lay off employees for up to 120 days (instead of up to 60 days), retroactive to March 17 if the lay off was related to COVID-19.
• More easily seek variances of and exceptions to other employment standards (related to COVID-19) from the government.

In effect, these changes allow employers to more easily and quickly alter working conditions and layoff employees.

Workers’ Compensation
Alberta’s Workers’ Compensation Board (WCB) issued some preliminary advice about the compensability of injuries caused by COVID-19. The crux seems to be that the WCB has determined that most instances of COVID-19 are not work-related.

The WCB’s Policy 03-01, Application 3 (Occupational; Diseases) addresses the question of work-relatedness of infectious diseases by applying a three-part test, Infectious diseases are eligible for compensation if:

(a) The nature of employment involves sufficient exposure to the source of inflection, and

(b) The nature of employment is shown to be the cause of the condition, or

(c) The nature of employment creates an increased risk of exposure for the worker.

Although there are several ways to interpret this test, the most likely interpretation appears to that a claim must meet (a) and then either of (b) or (c). In its March 26 guidance to employers, the WCB asserted that each claim is judged upon its merits but then opined:

A claim is likely to be accepted if a worker contracts the illness and is performing what the province deems to be an “essential service” that puts them in regular contact with the general public. A worker will also likely be covered in the event of a widespread outbreak at their place of work.

Alberta’s list of essential services is extensive. This likely extends the scope of accepted claims beyond the WCB’s March 9 position that accepted claims would likely be mostly restricted to health-care workers. The potentially large number of COVID-19 claims, particularly high-cost claims associated with fatalities, may place some pressure on Alberta’s Accident Fund going forward.

Alberta has also deferred 2020 WCB premiums until 2021. And private-sector employers with $10 million or less in insurable earnings will have 50% of the 2020 WCB premiums waived. This waiver is estimated to cost $350 million and will be paid by the government (not taken from the surplus of the WCB’s Accident Fund).

-- Bob Barnetson