Housebound for the holidays

‘Tis the season for dealing with holiday pay, vacation requests and – though not merry – new health and safety measures and restrictions. During this year’s holidays, it is important for employers to keep in mind the implications of the first – and hopefully last – COVID Christmas in Canada’s most populous jurisdictions, including British Columbia, Alberta, Ontario, Quebec and the federally regulated sphere.

Parties and gatherings will be low key, different this year

Canadians in most provinces can expect to host smaller – or in some cases no – gatherings this holiday season. In Alberta, British Columbia and red zones in Quebec, social gatherings of any size, except with members of one’s own household, are prohibited, save in limited circumstances. In Ontario, a province-wide shutdown is scheduled to begin on December 26 at 12:01 a.m. and will also prohibit indoor gatherings with people outside of immediate households.. Federally, the government reminds employers and individuals alike to respect local and provincial gathering rules.

Business owners and employers should avoid in-person gatherings during the holiday season, whether indoors, outdoors, or at their places of work or business. For employers that wish to drum up some holiday cheer, considering virtual options is advisable.

Holiday shopping and gift-giving won’t always be possible

Most provinces are heading into the holiday season imposing stringent restrictions on businesses offering services at their physical locations. 

In Ontario, a number of regions are currently or will soon be under Stage 1, meaning only businesses deemed “essential,” such as grocery stores, pharmacies, and hardware stores, are permitted to serve the public at their physical locations. 

Similarly, in Alberta, Calgary and Edmonton are classified as Enhanced regions and subject to the most stringent restrictions. Specifically, while retail stores may stay open, only 15% of their maximum fire code capacity is permitted to enter. All restaurants are limited to takeout and delivery options and, all personal grooming and entertainment businesses have been closed.

In Quebec, from December 25 to January 10, only priority commercial enterprises can stay open. Further, megastores, drugstores and hardware stores, which are all included in Quebec’s list of priority commercial enterprises, may only sell products essential to daily life. 

In British Columbia, the provincial government has identified COVID-19 essential services that should be and are encouraged to remain open, but at this time, all other businesses may continue to serve the public if not ordered to close by the public health officer and provided they adapt their services to abide by all applicable orders currently in force. 

The stores and streets will be more quiet and hollow

Some jurisdictions have heightened the restrictions on physical presence in the workplace. 

For example, in Quebec, teleworking is mandatory from December 17 to January 10 for all office workers, except workers whose physical presence employers deem necessary for the organization’s activities, in both the public and private sectors. Mandatory teleworking is also in place in Alberta, though there is an exception where the employer determines that the employee’s physical presence is required to effectively operate the workplace. In BC, employers must encourage their employees to work from home if feasible, depending on the nature of the work involved, and provide their workers with the necessary work-related support to do so, unless there is an employer or employee preference for the employee to work at the workplace. Similarly, in Ontario, while teleworking is not mandatory, employees should be directed to work from home where possible. 

Where businesses can maintain their physical locations and employees can still attend the workplace, heightened measures have been or must continue to be implemented. 

In Ontario, employers must continue to comply with the province’s mandatory screening measures, and ensure their COVID-19 workplace safety plan is updated per the recently released guidelines. Notably, regions under stage 1 must develop or update safety plans before workers return to the physical workplace. In British Columbia, employers are required to have a workplace safety plan in place that conforms with WorkSafeBC requirements and those included in the provincial health officer’s workplace safety health order. Employers on the west coast must also ensure workers conduct daily health checks and confirm they have passed it. The same is true for employers in Alberta where employers must ensure workers conduct daily symptom checks. Similar measures to protect the health and safety of workers are recommended in Quebec.

Holiday pay must be observed 

Rules on holiday pay differ by jurisdiction, depending on whether the employee works on the holiday or not.  For example, in Ontario, employees qualify for public holiday pay if they have worked all of their last regularly scheduled workday before the public holiday or all of their first regularly scheduled workday after the public holiday, or have reasonable cause not to have done so. The table below indicates which upcoming holidays are statutory holidays in each province:

Further, in Quebec, January 2 (Lendemain du jour de l’an, in French) is a holiday for employees in the clothing industry (which does not include employees working in a clothing store).

Take-aways

The 2020 winter holiday will undoubtedly be challenging for all given gathering restrictions, heightened occupancy limits, and restrictions on service to the public. This is important, as lessons learned from 2020 labour law awards indicate the consequences for failing to comply with COVID-19 measures can be severe, both for employers and employees.

Potential risks and challenges related to mental health should also be an area of heightened vigilance. The intersection of the holidays and the need for isolation means that some – especially those who live alone or who have known loss this past year – will face the holidays away from loved ones. Likewise, people of faith are also planning for a different Christmas this year, as participating in religious traditions and practising their beliefs in person may be limited.

In addition, employers should be up to speed on holiday pay requirements, which can apply even if employees are not working, or, in some cases, even if they are on layoff.

Despite the unfortunate, albeit necessary, gloominess this Christmas, there is cause to be thankful and hopeful. The discovery of a vaccine against COVID-19 is but one example that tells a story of resilience and courage this past year. And, on a lighter note, Santa Claus is still expected to make his rounds on time this Christmas, as provinces such as Ontario and Quebec have deemed his services “essential”, and recent reports from health officials in the United States indicate that he may have indeed already been vaccinated.

Finally, our national employment and labour practice group wishes you all a safe and happy holiday season, and remains committed and prepared to assist clients face whatever challenges that may lie ahead in the new year.

The authors wish to thank Emily Deraîche-Grossberg, articling student, for her help in preparing this legal update.

For further information on business closures and mandatory telework during the holidays in Quebec, please click here (in French only).

Pour de plus amples renseignements sur la fermeture des commerces non prioritaires et le télétravail obligatoire pendant la période des Fêtes au Québec, veuillez cliquer ici.