COVID-19 in 9 questions: Update for Quebec employers

The COVID-19 situation is an unprecedented challenge for Quebec employers and our team continues to keep a close watch on the key issues that it raises. This is the latest in our series of updates that provides you with answers to the most frequently asked questions and our lawyers’ recommendations on the subject.

1. What should employers do if an employee in their workplace is diagnosed with COVID 19?

• As a first step, you should follow all recommendations issued by the relevant government authorities and health professionals, as appropriate;
• Proactively investigate to identify all persons in the workplace who may have come into contact with the infected person and impose a mandatory 14-day quarantine period;
• Take the necessary preventive measures, including cleaning and disinfecting the areas frequented by the person who tested positive for coronavirus;
• Establish a communication plan based on transparency and provide a description of all measures taken by the company to deal with the situation;
• Pay particular attention to the presence of symptoms in other employees and require that they undergo a quarantine period if symptoms do occur;
• Consider measures to reduce your activities in the physical workplace and even close your establishment if necessary.

2. As a matter of urgency and given the financial difficulties facing them, could employers suspend the implementation of pay increases provided for in their company policies or collective bargaining agreements?

• On that issue, we refer you to our legal update suggesting that force majeure could be valid justification for breaching certain contractual obligations;
• In union environment: deferral or mitigation measures should be explored in discussions with the union. If you are unable to reach an agreement with the union, a member of our team could assist you in the process;
• In non-union environment: it is well established that employers may make unilateral amendments to the terms and conditions of employment if the changes are not substantial and are reasonable in the circumstances. Furthermore, unless the contract of employment or company policy expressly provides for it, an employer is not obliged to grant wage increases. Thus, given the current exceptional circumstances, it is our view that an employer would be justified in applying a wage freeze.  

3. In the event of temporary layoffs, are employers required to maintain benefits? 

• There is no obligation to do so, since a temporary layoff has the effect of suspending work performance and conditions of employment;
• However, employers could consider maintaining certain benefits during a layoff period as a mitigation measure;
• We suggest that you contact your group insurer and review the contractual obligations in this regard, since certain provisions could stipulate the length of the coverage maintenance period in the event of layoffs, as well as the terms and conditions of such coverage;
• In any event, we would strongly recommend putting in place a communication plan that clearly sets out the benefits that will or will not be maintained during a temporary layoff, as well as the timeframes that must be taken into account, thereby giving employees the opportunity to make appropriate personal decisions, if necessary.

4. Are there any other options that could be considered to avoid complete temporary layoffs in the event of a reduction or interruption of business activities?

• In a union environment, a number of mitigation measures could be considered and discussed with the union. We believe that in the current context, union representatives, like companies, have a vested interest in demonstrating openness and creativity to limit the impact of the current situation;
• An employer could also consider layoffs while compensating up to 95% of employees' wages while they are receiving Employment Insurance benefits. It is possible to enhance EI benefits in this way. For greater detail, consult: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html;
• In a non-union environment, an employer could also consider a variety of measures that would reduce financial pressures, such as reducing the number of work hours. Such measures should be part of a comprehensive action plan and our team could assist you with these issues to minimize the risk of allegations of constructive dismissal;
• Under certain terms and conditions, employers and employees could take advantage of the Work-Sharing Program offered by Employment Insurance  as an alternative to layoffs by reducing the number of work hours for a certain period of time while benefits are paid to employees: https://www.canada.ca/en/employment-social-development/services/work-sharing.html.

5. Do the rules on collective dismissal apply in the case of layoffs involving many employees?

• The rules on collective dismissal both under the Act respecting labour standards (governing enterprises under provincial jurisdiction) or the Canada Labour Code (governing enterprises under federal jurisdiction)  do not apply to temporary layoffs;
• We are keenly aware, however, that some of the layoffs currently being considered on a temporary basis may well become permanent as the situation evolves;
• In this context, there are a number of preventive strategies available, which we suggest you consider depending on the various scenarios you may be facing. Our team could outline several likely scenarios in that regard based on all the relevant circumstances of each situation;
• In any event, we encourage employers to devote particular attention to communications with employees and unions, as appropriate;

6. Can COVID-19 be recognized as an occupational disease or a work-related accident?

• That scenario cannot be excluded;
• There is case law recognizing the existence of an employment injury in the case of similar illnesses or illnesses that are transmissible between humans where there is compelling evidence that it was contracted in a high-risk environment or that the injury results from circumstances directly related to work;
• Nevertheless, the relationship between COVID-19 and the workplace must be demonstrated, which, in our opinion, may be difficult in a context of potentially widespread contagion that may have numerous sources;
• The considerations set out above therefore emphasize the need for significant and proactive prevention measures to limit the likelihood of exposure and contagion in the workplace;

7. What risks does a company run if it does not put in place preventive measures in compliance with recommendations issued by government authorities?

• It is crucial that employers take proactive and aggressive preventive measures in all workplaces, and this is something that we urge you to do in the strongest terms;
• Practically speaking, the risks are both human and commercial in nature. Failure to take action could facilitate disease transmission and result in serious business interruption;
• From a legal perspective, if preventive measures are non-existent or inadequate, employees could exercise their right to refuse to work, a response that would be considered valid by the responsible authorities;
• In addition, a company that fails to comply with its occupational health and safety obligations, could, depending on the case and the seriousness of the failures, face criminal and penal proceedings;

8. What are the main employee support measures that have been announced by the federal and provincial governments?

• The Government of Quebec has announced the establishment of a temporary assistance program for workers in Quebec who must be temporarily isolated and who are not entitled to employment insurance. For details, consult: https://www.quebec.ca/en/family-and-support-for-individuals/financial-assistance/temporary-aid-for-workers-program/;
• The Government of Canada has announced its intention to confirm additional support measures this week. We will keep you posted;
• We would like to remind you that measures have already been put in place to waive the waiting period for employment insurance benefits due to quarantine. For more information, consult: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

9. Do your recent publications require updating?

• Our legal updates published to date remain current and the recommendations in them are generally applicable;
• However, our legal updates should be read in conjunction with all the rapidly changing communications and recommendations issued by government authorities;
• We also remind you that our recommendations are formulated with the aim of providing our clients with the legal and practical options available, and that company policies can obviously be adapted as the situation requires. We remain available to provide guidance on this aspect and to share our relevant experience with you.