Our thoughts are with those affected by the recent devastating floods in southern Alberta. In times like these when faced with imminent danger and threats of natural disaster, employers may not immediately consider their legal obligations to their employees. Many employers in Calgary and elsewhere in southern Alberta advised their workers to not report to work during the height of the flood. Are employers obligated to pay those employees who normally would have worked during that time?
Fundamentally, the employment relationship is contractual. The consideration for salary is service. If the employee does not provide service, the employer is not obligated to pay the employee subject to statutory and contractual obligations. However, it is hoped that compassionate flexibility and good sense will prevail in these situations. Often there may be more value in supporting employees through these troubled times by creating a positive and accommodating work environment than strictly adhering to the letter of the law. This may mean paying an employee’s wage for days he or she may not have worked despite no lawful requirement to do so.
That said, the employment contract, all workplace policies, and other legislation like the Employment Standards Code and the Occupational Health and Safety Act continue to apply. Employees, as always, can refuse to work when their workplace is unsafe and there is an imminent danger to health or safety. Employers would be well-advised to not require their employees to report for work under such conditions in any event unless, of course, the employees provide services that are essential during such times of crisis (e.g., fire, police, emergency medical services, etc.).
There are no other statutory provisions in Alberta that address employer obligations during a state of emergency. Some provinces, such as Ontario, have legislated personal emergency leave to allow employees to take up to 10 unpaid days off from work which employees could likely utilize during natural disasters. This kind of leave is not expressly provided for in Alberta’s legislation. For employees dealing with the hardships resulting from natural disaster, sick leave or other stress-related leave may be an option depending on workplace policies and the particular terms of benefit plans provided by employers.
Employers can likely cancel shifts for casual employees who are normally free to accept or refuse work during these times with little risk subject, of course, to minimum pay requirements for employees who may have already begun their shift before being sent home. The situation is more complicated for other employees. Employers should consider options for having these employees report to a different location or working from home.
Complications may arise where the workplace is otherwise safe but the employer might wish to reduce or shut down operations for a period of time. If an employer prevents an employee from returning to work for any reason other than safety concerns, there is a risk that a constructive dismissal claim could develop.
Employers have options in cases where their operations may be shutdown for an extended period of time. In consultation with the employee, employers may encourage their workers to take advantage of unused vacation time while the business is not in operation. Employers may also consider temporary lay offs for up to 60 days. In either case, the employer should be mindful of the minimum requirements of Alberta’s Employment Standards Code and any relevant provisions in the employment contract or workplace policies that may apply.
Termination may be the final option if the shutdown will be lengthy or permanent. The Code states that employees are not entitled to notice of termination or pay in lieu of notice if the contract of employment has become impossible for the employer to perform by reason of unforeseeable or unpreventable causes beyond the control of the employer. A natural disaster that completely destroys the employer’s business may be a situation in which this provision of the Code could be invoked. Note that in the event that 50 or more employees may be dismissed within a 4 week period, special provisions in the Code dictate that the employer must provide notice to the Minister of Human Services. However, although all these Code requirements may be met, the terms of the employment contract and the common law may nonetheless impose an obligation on the employer to provide some period of notice.
The days and weeks following a natural disaster such as this are indeed trying times. To make a donation to the Canadian Red Cross in support of flood relieve in Alberta, contact 1-800-418-1111 or visit www.redcross.ca/Donate/Donate-Online/Donate-to-the-Alberta-Floods.