COVID-19: Update and status report for Quebec employers

The COVID-19 situation presents an unprecedented challenge for Quebec employers, and our team is keeping 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. How should absences resulting from the closing of educational institutions and daycare centres be handled? 

• If an employee is unable to report to work for this reason or is unable to work remotely under the circumstances, we believe this absence can be considered an absence for family obligations;
  
  
• For businesses under provincial jurisdiction, two paid days are granted to employees annually, whereas for businesses under federal jurisdiction, three paid personal leave days are granted to employees;
  
  
• Otherwise, such an absence is usually considered unpaid leave;
  
  
• However, government authorities encourage employers to be flexible. It should be noted that businesses under federal jurisdiction are subject to the Canadian Human Rights Act (CHRA), which requires employers to accommodate their employees who are dealing with family situations. Employers should consider alternatives , such as allowing employees to use accrued vacation days or modifying/reducing work schedules;
  
  
• Note that in unionized contexts, such arrangements and proposals should first be discussed with union representatives, where applicable;

2. What must be done when closures are ordered by government authorities?

• On this subject, we recommend full compliance with orders issued by government authorities;
  
  
• As regards the consequences of such closures, we refer you to our latest legal update entitled What to do if COVID-19 results in a business interruption?;

3. What do you recommend for current or future hirings? 

• Given the current context and recommendations issued by public health authorities, we recommend that hiring processes be limited to those that are strictly necessary for your operations;
  
  
• Any such process should, to the extent possible, be carried out remotely using the technological means available;
   
• If the hiring process requires an in-person meeting, verifications should be made (as they should for all employees) to confirm that the candidate is asymptomatic, did not return from a trip abroad in the last 14 days and has not come into contact with an individual carrying the virus or presenting symptoms. If so, the same precautions should be taken, namely isolation;
  
  
• If employees must be hired as a result of the current situation and for an indeterminate term, close attention should be paid to the terms and conditions of the employment agreements entered into;

4. How should businesses manage situations where business partners, service providers and sub-contractors must report to the workplace? 

• As is the case for employees, we believe businesses can restrict the access of all partners and third parties that would normally have access to their place of business. If your business leases premises, you should liaise with the tenant of the premises to coordinate your efforts;
  
  
• Access to your place of business should be limited to those individuals whose presence is required to maintain your activities;
   
• We recommend that you implement a verification process for third parties to ensure that before a visitor is granted access to your place of business, he or she is asymptomatic, has not returned from a trip abroad in the last 14 days and has not come into contact with a person carrying the virus or presenting symptoms. If so, access should either be prohibited or limited, and preventive measures taken;
  
  
• Furthermore, all service contracts or other agreements should be examined in the event of a temporary business interruption or if the business needs are temporarily suspended. Similarly, an analysis should be performed in the event that  a service provider is unable to meet its obligations;

5. Do you have more information on the government support measures for businesses and employees that will be announced?

• The Government of Quebec has reiterated its intention to announce concrete measures in the next few days. We are still waiting for details and conditions, but we will keep you posted;
  
  
• The federal government released a notice regarding the conditions under which the waiting period may be waived so quarantined employees can receive employment insurance benefits immediately: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html;

6. If a slowdown or temporary closure results in layoffs, will employees be entitled to receive employment insurance benefits without having to undergo a waiting period?

• This question remains uncertain. The notice published by the federal government only mentions the situation of a quarantine and does not specify what terms and conditions apply to closures or slowdowns;
  
  
• For the time being, we recommend that employers who are in this situation issue a record of employment as soon as possible stipulating the layoff results from the COVID-19 situation to help employees with the measures they will be taking;

7. Is it appropriate to use incentive measures for employees who must report to work?

• In our opinion, incentive measures should be used with caution. Indeed, such a measure could be construed as favouring work attendance, something that should only be required for the purposes of maintaining business activities;
  
  
• That being said, steps can be taken to make life easier for those employees who must report to work so you can maintain your activities, bearing in mind that all recommended health measures must be complied with. This might include, for instance, reimbursing or providing free parking, meals, daycare services, etc. We recommend, however, that any such measures be implemented in a coherent and fair manner;
  
  
• If the crisis triggers exceptional circumstances requiring some employees to work overtime, agreements could be reached to reflect this particular context. Various obligations provided for in applicable legislation must also be taken into consideration;
  
  
• In unionized environments, such questions can also be discussed with union representatives;

8. Must employers pay the costs of working remotely?

• The costs associated with work-related equipment and the installation thereof are usually the employers’ responsibility, unless specific rules are set out in the employment agreement and the working conditions are more generous than the minimum statutory requirements;
  
  
• That said, these are exceptional circumstances and, if with the consent of the employees, we believe the use of personal equipment can be considered;
  
  
• Where applicable, however (especially where technological equipment is concerned), it is crucial that you honour your confidentiality undertakings and ensure your systems are protected. You should therefore analyze these issues before authorizing such a measure;
  
  
• Regardless of the circumstances, if your business implements measures favouring remote working, parameters should be communicated by means of temporary policies or guidelines;

9. For businesses under provincial jurisdiction, has the CNESST given any details on its guidelines regarding this situation? 

• The CNESST has recently published a series of questions and answers providing additional information, which can be found by clicking here: https://www.cnesst.gouv.qc.ca/salle-de-presse/Pages/coronavirus.aspx;

Are there elements of your latest publications that need to be updated?

• The legal updates we have published to date remain topical, and the recommendations therein still apply;
  
  
• However, to avoid confusion, we believe that anyone presenting symptoms of COVID-19, who has returned from a trip abroad in the last 14 days or who has come into contact with someone who developed the illness should undergo a quarantine period of at least 14 days as a preventive measure, in keeping with every employer’s obligation to ensure their employees’ health and safety;
  
  
• Stronger preventive measures should be considered for employees who have come into contact with people presenting symptoms of COVID-19, i.e., cough, fever, or respiratory difficulties;
  
  
• In all cases, we believe employers should issue clear and imperative instructions requiring the immediate disclosure of all relevant medical information mentioned above;
  
  
• We invite you to read our legal updates in light of all communications issued by the government authorities and their recommendations, which are evolving quickly;
  
  
• We also remind you that while our recommendations are made to inform our clients of the legal and practical options available to them, internal policies could naturally be adapted and tailored to each particular situation. We remain available if you need further guidance on the subject or to share our relevant experience.