The devastating impact of the wildfire that continues to burn throughout northern Alberta has left those directly affected with unanswered questions relating to sources of income and financial stability. Many workplaces have either ceased operations indefinitely or no longer exist. The situation has many employers asking about their duties to employees in these circumstances. This bulletin is a summary of Alberta employer obligations relating to occupational health and safety, employee pay, time off and terminations of employment in times of emergency.
EMPLOYMENT LEGISLATION ADDRESSING DISASTERS
In Alberta, the employment relationship is fundamentally contractual in nature. In a unionized context, the terms of the collective agreement will govern. In a non-unionized context, the terms of the individual employment agreement (whether written or verbal) will govern. Such agreements are supplemented by common law contract principles and legislation governing the workplace, including Alberta’s Occupational Health and Safety Act (OHSA), Occupational Health and Safety Code (OHS Code) and Employment Standards Code (ES Code).
The OHSA, OHS Code and the ES Code contain the following provisions applicable to emergency circumstances such as the current wildfire:
- OHSA, section 2(1): General obligation on employers to ensure, as far as reasonably practicable, the health and safety of their workers.
- OHS Code, Part 7: Obligation on employers to establish and keep current an emergency response plan for responding to emergencies that may require rescue or evacuation. The personnel involved in emergency response must be specified in the plan, involved in its development, and made familiar with the procedures it provides for. All worksites require emergency response plans that address items such as first aid, fire protection, and procedures for rescue and evacuation.
- ES Code, section 55(2)(g): Termination notice is not required “if the contract of employment is or has become impossible for the employer to perform by reason of unforeseeable or unpreventable causes beyond the control of the employer.”
The legislation cited above represents the only legislative provisions applicable to provincially regulated Alberta employers specifically relating to emergency or natural disaster circumstances in the workplace.
Notably, other provinces (Ontario and Nova Scotia) have incorporated declared emergency leaves, providing employees with unpaid job protected leave in the event of a government declared emergency. Alberta has not explicitly legislated in this area, although there is a reasonable probability that an employer would be found to be acting imprudently to deny a reasonable request for unpaid leave during an emergency.
REQUIREMENT TO PAY EMPLOYEES
From a first-principles perspective and subject to contractual requirements to the contrary, an employer is only required to pay employees for time worked. In other words, an employer is not required to pay employees who are not working due to a natural disaster.
That being said, reports surrounding Alberta’s wildfire have indicated a willingness on the part of many employers to compensate workers for at least a certain amount of time they were unable to work. Some employers have also referred to company benefits that subsidize wages during disasters.
We note that caution should be taken in reducing or shutting down facilities for reasons other than safety concerns or the difficulty of continuing operations so as to avoid the risk of constructive dismissal claims (claims based on fundamental breach of the employment contract). If feasible, employers should consider whether there are ways of accommodating employees at other work locations. If unfeasible, employers should be aware of the ES Code’s temporary lay-off provisions, which allow for the temporary lay-off of employees up to a maximum of 60 days. Subject to any contractual requirements to the contrary, employers can make use of this mechanism to maintain employment relationships without proceeding to terminations of employment (if lay-off extends beyond 60 days, employment is deemed to be terminated). Note that legal advice should be sought prior to relying on these provisions and proceeding with any lay-offs.
REQUIRING EMPLOYEES TO TAKE VACATION DAYS
Subject to the terms of the individual employment contract or collective agreement, section 38 of the ES Code allows employers to determine when an employee will take vacation. If the employee and employer are unable to agree on when the employee’s vacation time should occur, an employer may provide two weeks’ written notice, requiring the employee to take vacation at a specific time. While cooperation between employers and employees during an emergency or natural disaster should be encouraged, this provision of the ES Code should be kept in mind by employers assessing how to react to the interruption of their operations.
If the employer’s business has been destroyed as a result of a natural disaster, the employment agreement may be considered frustrated, allowing the employer to summarily terminate the employment relationship. By virtue of the ES Code, employers in these circumstances are not required to provide notice of termination (or pay in lieu thereof) if the employment contract has become impossible to perform by reason of unforeseeable or unpreventable causes beyond the employer’s control. Similarly, the common law doctrine of frustration of contract would apply to relieve the employer and employee of any further contractual obligations, including an employer’s obligation to provide reasonable notice of termination (or pay in lieu thereof).
However, employers who have only been temporarily affected by a natural disaster (temporary closure or reduction in operations) are likely unable to rely on frustration of contract and would generally be required to provide notice of termination (or pay in lieu thereof) for any terminations of employment.
If terminating the employment of 50 or more employees at a single location within a four-week period, employers should also take note of the ES Code’s group termination provision, which requires notice of the group termination to the minister of labour.
Ultimately, unless the employment agreement provides otherwise, an employer is not obligated to pay employees if they are not working as a result of a natural disaster. Although employers are subject to certain obligations relating to employee workplace safety in relation to natural disasters, employers are not required by statute or at common law to go beyond this “safety first” principle. While the ES Code provides some mechanisms that employers may make use of in managing the employment relationship during a natural disaster, the following key takeaways should also be kept in mind:
- Consider planning for the next natural disaster through workplace policies. Policies that address employer and employee obligations as well as the potential impact on operations, wages and benefits in the event of a natural disaster, can manage employees’ expectations when a disaster strikes.
- Notify employees of the availability of emergency financial aid (those affected by the Fort McMurray wildfire are eligible for Alberta government assistance of C$1,250 per adult and C$500 per dependent and Canadian Red Cross assistance of C$600 per adult and C$300 per child), the availability of social-based assistance services through Alberta Supports (online or toll-free at 1-877-644-9992), and accelerated processes for accessing social assistance mechanisms such as employment insurance (Service Canada representatives have been placed at evacuation centres to assist with the application process and the Government of Canada has issued a special access code for those seeking employment insurance as a result of the fires in order to streamline the process, whether initiated online or in person, even without a Record of Employment).
- Review individual employment agreements and collective agreements, if applicable, to confirm whether any additional employer obligations (e.g., requirement for continuation of pay) have been specifically addressed in such agreements.
To make a donation through the Canadian Red Cross in support of the Fort McMurray fire relief, please contact 1-800-418-1111 or visit the Alberta Fires Appeal donation website here.
Workers affected by the fires should contact Service Canada at 1-800-206-7218, visit them online or in-person at the nearest Service Canada Centre.