Accommodations Allowed to Stay Open
Q: I run an accommodation business – am I allowed to be open during this time? What are the expectations in terms of operating?
A: At this point, provincial government guidelines state that unless your business is part of a previously identified required closures (such as dine in restaurants etc.) that you can remain open PROVIDED you follow the protocols outlined. These include requiring a two-metre (6 foot) distance between people; Workspaces must also be cleaned and disinfected at a minimum of twice daily, or as required, and employees must follow proper hygiene. Industry is being asked to follow carefully these protocols should they choose to remain open at this time. Public Health decisions may change protocols and/or changes in businesses permitted to be open during this situation. The TourismStrong.ca site can be checked for daily updates.
NEW: Property Taxes
Q: Will there be any deferral or adjustment of property taxes in NS?
A: On April 8th, TIANS was advised that the Provincial Government has been asked to make a statement broadly around deferral of property tax. This would mitigate having municipalities potentially create a patchwork of figures and dates. At this time, HRM has proposed a 31 day deferral, while Cape Breton Municipality is proposing 90 days.
The NS Federation of Municipalities is currently in discussion with Minister Porter to enact at least a 90 day deferral. Any potential decisions around this are not expected before mid April earliest and operators are urged to reach out to their local municipality to discuss any potential adjustment.
NEW: Cancellation of Events
Q: Has the Government made any call on suggesting the cancellation of events in the summer.
A: It’s really up to each individual group to determine what is best for them and their organization. Public Health continues to advise everyone to monitor Public Health notifications and their advice. They encourage everyone to use that advice to make decisions for themselves.
Advice for Organizations and Events: Check with your insurance company for specific information, suggestions and support as it relates to your specific organization/event.
The federal government released a set of economic measures to help stabilize the economy. Some of the measures are aimed at supporting not-for-profit organizations. The federal government also has put together the information for those of you planning events or festivals.
Consider the following:
- You should stay up to date with the latest public health advice on COVID-19, which you’ll find at novascotia.ca/coronavirus
- You should ensure your event management and contingency plan is up to date and you have a cancellation, curtailment or postponement plan in place. If you need assistance, please reach out to your program officer.
- You should ensure your crisis communications strategy follows official advice as circumstances may change before or during your event.
UPDATE: Temporary Wage Subsidy
Q: Is there a temporary wage subsidy for employers?
A: The federal wage subsidy for small and medium-sized businesses hit by the new coronavirus pandemic is jumping up to 75 per cent, the prime minister announced on Friday. Trudeau also said the government will be offering a new Canada Emergency Business Account to provide loans of up to $40,000 to small and medium-sized businesses that will be interest-free for one year. Link here to view announcement.
International Travellers Requesting Accommodations.
Q: I have calls from international travellers requesting accommodation for a couple of days. I’m very uncomfortable saying no to them. Is there any direction on how to handle such contacts?
A: The 14-day self-isolation requirement for anyone outside the Country applies and you are within your rights. While difficult, the tourism industry must follow the protocols to stay safe. We are in the process of updating some FAQ and will be posting off the TIANS website.
Sending Visitors Back to Home Country
Q: Is there a request from the Government (or any other organization) for foreign visitors to return to their home country?
A: Yes. The Federal Government is banning International Travel and non-residents have been encouraged to return to their home Country (see link). International Students attending our post-secondary institutions have also been told to leave the Country.
Source: Ius Laboris Canada Matthew Dinsdale & Clark LLP| Global HR Lawyers
Employee Tests Positive for COVID-19
Q: An employee has tested positive for COVID-19 – what does the employer do?
A: The employee should not be permitted to return to the workplace until they are free of the COVID-19 virus. The current advice from health authorities is that all employees who worked closely with the infected employee should also be removed from the workplace for at least a 14-day period to ensure the infection does not spread in the workplace. What constitutes “closely” will depend on the workplace and the nature of interactions between employees. Employers should err on the side of caution. Employers should also take reasonable measures to protect the confidentiality, to the extent possible, to protect the identity of any employee who contracts COVID-19.
Business is Slow, Not Enough Work
Q: Business is slow, and I don't have enough work for my employees. What can I do? Source: The Canadian Federation of Independent Business (CFIB)
A: Unfortunately, this is likely to be the case for many businesses. The government has pledged $10 billion in a credit facility administered by the Business Development Bank of Canada and Export Development Canada. There are also steps you can take to determine your business’ future:
• Review your finances: Look at your revenue vs your expenses – are you able to meet your basic expenses? Speak to your accountant/bookkeeper about your options and whether it makes sense to stay open, pause your business, shut down until an opportunity in the market arises, or close your business.
• Make a Business Continuity Plan: Weathering the storm will be difficult, make sure you have a plan as to how to do it. Restarting a business that has been suspended will take thought and time to bring back to its former level. Are there other options for your business to stay open? Can you find new suppliers? Can you change your business model to continue to serve your clients (i.e. provide delivery of food instead of having sit-in customers)
• Speak to your commercial insurance provider: You may be entitled to business interruption insurance payments. Call your provider to double check your entitlement.
• Communicate with your employees twice a week: Let employees know what safety measures/policies you are putting in place to keep them safe.
Post educational posters and share safety tips.
Ensure that there is a way for employees to notify you if they are sick whether that be through health and safety representative/committee or though their manager.
Talk to employees about their job security/health status/income options. Are they entitled to employment insurance.
Q: Can an employer temporarily lay off employees?
A: Yes, but there is a real risk that any unilateral lay off of employees may be treated as a termination of employment under employment standards legislation or the common law. There are also statutory exemptions in many jurisdictions for unforeseeable circumstances, which may include a pandemic or government-ordered closure of a business. A number of provincial governments are proposing amendments to statutory leave guarantees to address the impact of COVID-19.
A: Lay-off provisions are a common feature of collective agreements and the conditions of lay-off and/or recall for unionized employees will depend upon the language of the collective agreement.
A manager or other non-union employee generally may only be laid off temporarily if the employment contract provides for the possibility of temporary lay-off, if temporary layoffs are common in the industry, or if the employee agrees to the layoff. In most industries, temporary layoffs are uncommon and are not a feature of the employment contract. In those circumstances, a temporary layoff without the employee’s agreement may trigger a constructive dismissal. In the current environment there may be an argument available for exceptions based upon circumstances that are unforeseeable and beyond the employer’s control. Employers are strongly advised to obtain legal advice before laying off non-union employees.
Read MacLean's Canada Layoff Tracker.
Forced Government Closure
Q: What happens to our employees if we are ordered to close our business by the government?
A: If the employer is ordered to close by health or other authorities, employers may be able lay off employees without liability under provincial employment standards legislation or the common law. Each case will be dependent on its own facts.
Layoffs & Benefit Plans
Q: If we layoff our employees, are they still covered under our benefit plans?
A: This will depend on the language of the benefit plan document. Employers must review their policies with their benefit plan provider and advice employees of any limitations or restrictions in coverage.
Closing For Safety
Q: Can an employer close its business for safety reasons due to the COVID-19 outbreak?
A: An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location for occupational health and safety
reasons. An employer’s obligation for providing notice or pay in lieu of notice to employees in the event of a workplace closure will be governed by the specific facts of each case.
Compensation Requirements - Off Work With No Symptoms.
Q: If an employer keeps an employee without COVID-19 symptoms out of work, is there a requirement to compensate the employee?
A: This will depend on the circumstances, including if the employee has travelled, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential contract or collective agreement requirements. While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable. There is also the potential for reputational damage should it become publicized that employers are forcing employees to remain away from the workplace without pay. Employers may also wish to consider whether the absence of compensation will reduce the efficacy of preventative measures in the workplace. If they will not be compensated, employees may not self-assess as critically as required or may not report issues or concerns.
Compensation Requirements - Employee with COVID-19
Q What if an employee has COVID-19 and cannot work?
A: Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.
If the employee contracted COVID-19 in the workplace, there may be additional reporting obligations under workers’ compensation and occupational health and safety legislation.
Fire Employee with COVID-19
Q: Can an employer fire an employee if they contract COVID-19?
A: No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.
Refusal to Work
Q: What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?
A: Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has reason to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety (which is not an inherent or normal condition of their work), the employee may be able to refuse to attend work or perform certain duties. In the context of the COVID-19 pandemic, employers can expect to see work refusals from employees based on:
- a confirmed or presumptive case of COVID-19 in the workplace;
- a confirmed case of COVID-19 in an employee’s immediate family or other close contact;
- the risk of potential exposure to COVID-19 from contractors, customers or clients depending on the nature of the workplace or the people it serves;
- concerns from employees who are particularly vulnerable (over age 65, compromised immune system, underlying medical condition) not wishing to report to work; or
- employees with a generalized fear of contracting COVID-19 by travelling to or attending work.
Whether or not a wok refusal based on the above or other grounds is reasonable will depend on individual circumstances. In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.
Employers should also understand that, where the regulator is required to resolve the work refusal, the way the regulator does so could be different than might ordinarily occur. The determination of the regulator might be made without meeting with the workplace parties in person or there may be other steps or measures implemented by the regulator, for the protection of its staff, that are unusual.
Discipline for Work Refusal
Q: Can employees be disciplined for a work refusal?
A: Provincial occupational health and safety legislation generally provides that employers cannot dismiss, discipline, or intimidate employees for properly exercising a health and safety right. An employer may be justified in imposing discipline if the work refusal has been exercised in bad faith. However, the ability to discipline will depend on the circumstances of the work refusal and the language in the applicable work refusal right. An employer considering discipline for a refusing worker should do so after consultation with counsel in all but the clearest of cases.
Q: Can employees refuse travel as part of their job duties?
A: That will depend on the nature of the employee, the specific job and the travel destination. For example, employees over the age of 65 may not wish to travel at all. If there is a legitimate work refusal for safety reasons, occupational health and safety legislation will govern the resolution of any work refusal.
Request to Work Remotely
Q: Can an employer require an employee to work remotely?
A: In the current climate, a request that employees work remotely will likely be seen as a reasonable measure to encourage social distancing, given the advice of federal and provincial government authorities.
Monitoring Work Remotely
Q: How do we monitor employees working remotely?
A: Employers should have a written policy which governs employees who are required to work remotely and addresses such things as working hours, productivity, remote meeting protocols, BYOD issues, etc.
Q: What if an employer needs to replace sick employees on a temporary basis to operate?
A: An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work. Employers in unionized workplaces should be cognizant of collective agreement and provincial labour laws applying to unionized workplaces. Employers should have already assessed how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work. If you have not done so already, do so now.
Buying Personal Protective Equipment
Q: Do employers have to buy personal protective equipment for employees?
A: Employers have a duty to provide a safe working environment relative to the expected duties of the employee and the risks in the workplace. If employees run the risk of becoming infected at work because of the work they perform, the employer must provide personal protective equipment. As of March 12, 2020, public health authorities are not generally recommending personal protective equipment (e.g. masks, gloves) or any other physical protective devices. The preventative measures being advised are hand, respiratory, and environmental hygiene and social distancing. These recommendations suggest that these measures are generally reasonable for most workplaces. However, if you have an employee who is vulnerable (over age 65, compromised immune system, or underlying medical condition) the obligations to this employee could be different. Precisely what steps may be reasonable to protect the vulnerable worker are likely to be determined on a case-by-case basis and involve advice from public health and/or medical officials. Employers may not know if a vulnerable employee is in the workplace. As part of workplace communications about COVID-19, employers should prompt workers with individual risk concerns to raise them with the employer.
Wearing Masks at Work
Q: Can we prevent an employee from wearing masks at work?
A: Yes, unless the use of personal protective equipment, such as masks, is a condition of employment or otherwise required for the employee to safely perform their duties.
Workers Compensation for Sick Employees
Q: If an employee contracts COVID-19 at work – are they covered by workers’ compensation?
A: Possibly, but the assessment of whether the employee is entitled to compensation would be assessed on a case-by-case basis. Workers compensation boards will have to assess whether COVID-19 is an occupational disease: e.g. it was caused by and arose out and in the course of employment.
Employment Insurance Sickness Benefits
A: Will EI offer sickness benefits to Canadians?
Q: Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or quarantine, to allow them time to restore their health and return to work. Canadians quarantined can apply for EI sickness benefits. Presently, the one-week waiting period for EI sickness benefits has been waived for claimants who have been quarantined, as has the requirement for a medical certificate.
Income Support - Not Qualified for EI Sickness Benefits
Q: What does income support look like for workers who do not qualify for EI sickness benefits?
A: The measures include an Emergency Care Benefit, which will provide up to $900 bi-weekly for up to 15 weeks to provide income support to workers who do not qualify for EI sickness benefits, workers caring for a family member with COVID-19 and parents who are unable to work due to childcare obligations. Applicants will be required to attest that they meet the eligibility requirements and to re-confirm eligibility every two weeks. It is anticipated that this Benefit will commence in April 2020.
Emergency Support Benefit
Q: What if my workers aren’t eligible for EI?
A: The Emergency Support Benefit will provide payments to workers who are unemployed and are not eligible for EI. At this time, the details of the amount payable to workers have not been released. It is anticipated that this Benefit will commence in April 2020.