COVID-19: Government of Alberta announces list of essential services – Employment and Workforce Wellbeing

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Alberta is in a state of health emergency, under the authority of the Public Health Act due to COVID-19. The Government of Alberta (“Government“) has not yet declared a provincial state of emergency under the
Emergency Management Act, but he stepped up his response daily. On March 27, 2020, it released a list of essential services and ordered that non-essential places of business are no longer allowed to offer or provide services to the public in a publicly accessible location. The list of essential services is published on the government website website and we expect it to be updated and possibly linked to a formalized ministerial or public health order. If and once this happens, we will update this bulletin accordingly.

List of essential services

The categories of businesses identified on March 27 as
essential services includes health and medicine, public safety and security, food and housing, energy, utilities, transport, industry, oil and gas, construction, agriculture, essential retail, financial services, information and telecommunications, and public administration and government. We encourage readers to review the full list of essential services available on the government website as it may change from time to time.

Closures of non-essential businesses, workplaces and facilities

On March 27, the government also order which specified types of
non-essential business locations are no longer authorized to offer or provide services to the public. The order includes a list of non-essential places of business affected, namely businesses offering or providing non-essential health services, personal services (i.e. services primarily for the appearance of a person), wellness services (such as massage and reflexology), and retail stores offering only non-essential goods or services. Only catering establishments offering take-out, delivery or drive-thru service are permitted to operate, but no catering services are permitted.

For the purposes of the March 27 Order, the following definitions are provided:

  • a “non-essential health service” includes any service which is generally provided to protect, promote or maintain the health of an individual and where interruption of the provision of services will not result in immediate danger to life, health or the safety of an individual; and
  • an “essential service” is a service considered essential to the preservation of life, health, public safety and the basic functioning of society.

It is unclear how these two definitions relate to the list of essential services published on the government website. We anticipate that the government will amend the March 27 order to clarify this relationship or issue a new ministerial or public health order in the near future providing that essential services are only those services specifically identified in the list of essential services on the government website.

The order further provides that any place of business that is still allowed to operate must prevent the risk of transmission of infection, provide for a rapid response if a worker or member of the public develops symptoms and maintain high levels of hygiene in the workplace and workers.

Mandatory restrictions on mass gatherings

Additionally, the order issued on March 27 amended previously imposed mass gathering restrictions to limit gatherings to no more than 15 people, indoors or outdoors. People must maintain a minimum distance of 2 meters between them. Certain services or facilities are exempt, including grocery stores, shopping malls (provided access is granted only to stores providing essential goods and services), healthcare facilities, airports, legislature and other essential services.

Workplaces that are not otherwise restricted or ordered closed may have more than 15 workers in a workplace as long as they follow all public health guidelines and social distancing measures.

Consequences of non-compliance

Not complying with the Public Health Act could result in fines of up to $100,000 for a first offense and $500,000 for a subsequent offense. The province has also put in place a complaints procedure to report establishments that are not complying with public health orders.

Impact on employers

Employers affected by government announcements are encouraged to continue their operations through telework agreements and other innovations. However, the reality for many Alberta employers is that such measures are simply not possible.

As a result, some employers are resorting to the temporary layoff provisions of Alberta law. Employment Standards Code (the legislation that prescribes minimum standards of employment in provincially regulated workplaces, the “Coded“).

The maximum duration of a temporary layoff under the Code is 60 days in total within a 120-day period. On the 61st day, the employee’s employment is automatically terminated. However, the period of temporary layoff may be extended beyond 60 days if the employer makes regular payments to or on behalf of the employee (for example, salary, pension or benefits) and the employee accepts these payments in lieu of a layoff duration limit. Employment is automatically terminated when such payments in lieu cease. If an employee is laid off for a longer period than a temporary layoff as noted above, the employee will generally be entitled to severance pay.1

But employers should be aware that there is case law that suggests that a temporary layoff without pay may amount to constructive dismissal in the absence of a contractual right to do so. Constructive dismissal occurs when an employer has not expressly terminated an employee’s employment, but a termination can be construed from the conduct of the employer. However, there is also case law that suggests that an employer is not liable to pay damages when the employee is prohibited by law from providing services for what appears to be a long and indefinite period (a ” ongoing illegality”).

Suffice to say, it remains to be seen how courts and tribunals will interpret the legal effect of a temporary layoff in the age of COVID-19.

Alberta government relief for employers

Please refer to our other COVID-19 bulletins for federal relief available to employers. The list below provides a high-level overview of the government relief available to Alberta employers starting March 27. Additional measures may be announced at a later date.

Corporation tax:

  • Corporate income tax balances and installment payments falling due between March 18 and August 31, 2020 are deferred to August 31, 2020 to increase employers’ access to cash so they can pay employees, settle debts and continue their activities.

Property tax:

  • School property tax rates will be frozen at last year’s level. The collection of the non-residential school property tax for businesses will be postponed for 6 months. Deferred amounts will be refunded in future tax years.

  • Commercial landlords are encouraged to pass the savings on to their tenants through reduced or deferred payments to help employers pay their employees and stay in business.

  • Businesses able to pay their taxes in full are encouraged to do so. This will help the province support Albertans during the pandemic.

WCB premiums:

  • Small, medium and large private sector employers may differ WCB Premium payments through 2021. For small and medium-sized businesses, the government will cover 50% of the 2020 premium when it is due in 2021. Employers who have already paid WCB premiums in 2020 are eligible for a discount or to a credit.

Utility payments:

  • Residential, agricultural and small commercial customers can defer payment of electricity and natural gas bills (regardless of supplier) for the next 90 days to ensure there are no outages. Customers are encouraged to contact the utility provider directly to arrange the postponement.

Tourist tax:

  • Hotels and accommodation providers may defer payment of tourism tax until August 31 for amounts due to the government on or after March 27, 2020. Deferred payments will not be subject to penalties or interest. However, hotels and accommodation providers must still file returns and must collect tourism tax from all guests staying at their properties during this time.

Banking:

  • Credit Unions: Businesses should contact their credit union directly to develop a plan tailored to their specific situation.
  • ATB Financial: Small business customers can request a payment deferral on loans and lines of credit for up to 6 months and access additional working capital.

Conclusion

The government has provided some explanation on essential services; however, we anticipate that the government will need to clarify the link between the published list of essential services and the orderly closure of non-essential places of business. We will continue to update you as new metrics and orders are announced.


Footnotes

1 The Code requires that a notice of temporary layoff of no more than two (2) weeks be provided to employees, unless a collective agreement provides otherwise or there are “circumstances unpredictable”. Businesses forced to close as a result of the Essential Services Order may be able to argue that the layoffs were due to unforeseen circumstances.


The above provides an overview only and does not constitute legal advice. Readers are cautioned not to make any decisions based solely on this material. Rather, specific legal advice should be obtained.

© McMillan LLP 2019

Michelle J. Kelley