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On March 13 and March 23, we wrote about some of the key issues facing employers in light of COVID-19. Since then, the situation has escalated and continues to evolve in real time, with a myriad of new issues for employers to consider. This Québec-focused update contains information on the obligations of Québec employers under Québec labour standards legislation and the Civil Code of Québec, including emerging issues of critical importance to employers.
What you need to know
Workforce reductions. Many employers are considering such measures as temporary layoffs, reductions in working hours and work-sharing to address the financial impact of COVID-19 on their businesses and to comply with the shut-down order of all non-priority activities and services issued by the Québec government. In some circumstances, these decisions could trigger constructive dismissal risks.
Temperature checks prior to reporting to work. It is unclear how regulators in Québec (including human rights tribunals) will view an employer practice of taking employees’ temperatures prior to work, particularly in light of competing legal rights under privacy, human rights and occupational health and safety laws. Depending on the nature of the employer’s business, this practice may be acceptable in Québec under the circumstances, provided it is done in a minimally invasive manner that respects employee dignity and privacy.
Responding to a positive diagnosis, etc. Employer obligations to employees will depend on whether an employee has reported a positive diagnosis, had contact with an individual who received a positive diagnosis, exhibits flu-like symptoms or has been in contact with an individual with flu-like symptoms. Generally, however, employers should take a cautious approach when considering how to respond to such information.
Work-from-home occupational health and safety obligations. With employees increasingly working from home, employers must ensure they continue to comply with their obligations under occupational health and safety legislation, including the obligation to report workplace injuries.
What options are available to employers to reduce their payroll obligations?
Employers in non-unionized workplaces have a number of different options to reduce their overall payroll liability, with a view to cost reduction during the COVID-19 pandemic. These include such potential measures as: (i) dismissing employees; (ii) temporary layoffs; and/or (iii) reducing employee hours (including through a work-sharing arrangement). We discuss each of these options below.
Québec employers generally have the ability to dismiss their non-unionized employees, employed for an indeterminate term, at any time for economic reasons1, subject to the obligations relating to the provision of notice of termination (or indemnity in lieu). These obligations—which can be significant—must be assessed under statute, contract and civil law, as applicable. Employers should also ensure that the dismissal cannot be perceived to be based on any prohibited ground of discrimination (including disability and family status) or related to an employee’s request to take a leave of absence in connection with COVID-19.
Particular care should be taken when considering the risks/benefits of dismissing employees whose contracts contain a fixed term of employment, since there is caselaw that suggests that such employees may be entitled to the stipulated remuneration until the end of the term.
Employers who are considering the dismissal of a significant number of employees should also ensure that they comply with applicable collective dismissal rules in the Québec Act respecting labor standards (the “ARLS”).
According to the ARLS, employers do not have to provide advance notice before laying off non-unionized employees for a duration of less than six months. For layoffs of a duration of six months or more, the ARLS provides that advance notice must be given based on an increasing scale depending on the length of the employee’s service within the enterprise. The notice requirements do not apply in certain circumstances, which include if the layoff occurs as a result of force majeure2. Subject to certain exceptions, the rules governing collective dismissals apply to layoffs of six months or more if ten or more employees in the same establishment are laid off during the course of two consecutive months.
Subject to an employment agreement or policy that states otherwise, employers are not required by the ARLS to continue to pay an employee or continue their benefits during a period of temporary layoff.
While the ARLS contemplates the possibility of employers temporarily laying off all or part of a workforce for a period of time without triggering a termination, some caselaw and commentary suggest that, under the Civil Code of Québec, a temporary layoff of non-unionized employees without pay may amount to constructive dismissal in the absence of (i) a contractual right to do so, (ii) an employee’s consent to the layoff or (iii) force majeure3.
In some circumstances, the risks associated with temporary layoffs without pay are heightened. It is possible to contractually undertake to perform an obligation even in cases of force majeure. If an employment agreement contains such an obligation, known as an obligation of warranty, the employer may be unable to rely on force majeure to justify a layoff. In a similar vein, some caselaw suggests that employees on a fixed-term contract cannot be laid off without pay prior to the expiry of the term4.
Employers should advise employees as soon as possible once it becomes clear that the temporary layoff will result in their termination. Some caselaw and commentary suggest that the layoff of a non-unionized employee lasting more than six months constitutes termination, triggering obligations in respect of notice of termination (or indemnity in lieu), and potentially the collective dismissal rules under applicable employment statutes depending on the number of employees deemed to have been terminated.
According to subsection 82(3) ARLS, a notice of termination given to an employee during the period when he is laid off is absolutely null, except in the case of seasonal employment that usually lasts for not more than six months each year. The employer will instead have to pay the laid-off employee an indemnity in lieu of notice.
In this difficult climate, employers should weigh the risks and/or benefits in deciding whether to go ahead with a layoff, and should seek legal advice with respect to the particulars of their situation.
Reductions in working hours and work-sharing
As an alternative to dismissal or layoffs (or in conjunction with them), some employers are considering requiring employees to work reduced hours to offset the financial impact of COVID-19. A significant unilateral change to an employee’s working hours and therefore their overall compensation may lead to a claim for constructive dismissal.
The Government of Canada has a Work Sharing Program that eligible employers may take advantage of in order to ameliorate the effect of reduced hours on their employees. Detailed information about this program, including how to apply, may be found on the Government of Canada website.
Can employers take their employees’ temperatures prior to permitting them entry into the workplace?
Employers are increasingly considering asking employees to undergo temperature checks prior to being permitted to enter the workplace. Human rights and privacy legislation in Québec places restrictions on an employer’s ability to require medical examinations or health testing. Unless the examination or testing is reasonably required to assess the employee’s ability to work, compulsory testing of employees through temperature checks normally would not be permitted. By contrast, occupational health and safety legislation requires employers to take reasonable care to ensure a safe and healthy work environment.
Arguably, taking temperatures of employees may be reasonable under the circumstances and necessary to meet an employer’s occupational health and safety obligations. On the other hand, many people with COVID-19 do not present with a fever, such that temperature checks may not actually be effective at screening employees with COVID-19. Employers must balance competing legal considerations before deciding whether to unilaterally take employee temperatures. Employers who decide to take employee temperatures should, among other things, do so in a minimally invasive manner that respects employee dignity and privacy
Employer obligations regarding employee positive diagnosis, symptoms, or close contact
An employer’s obligations to its employees upon receiving information relating to a diagnosis of or exposure to COVID-19 will depend on the information reported by the employee, as well as the nature of the particular workplace. Generally, we suggest employers take a cautious approach—which respects employee privacy rights—when considering issues such as disclosure to other employees, office closures, directions to work remotely, etc. However, employers should seek legal advice with respect to these issues, as the approach (and an employer’s obligations) may differ depending on the nature of the workplace, information disclosed, etc.
If an employer learns that an employee has tested positive for COVID-19 or has been in close contact with an individual who has received a positive diagnosis, it should consider taking the following steps:
Suggest that the employee seek medical advice (if they have not already).
Ensure that the employee not attend the office: (i) in the case of an employee who has received a positive diagnosis, until cleared to do so by a medical professional; and (ii) in the case of an employee who has had close contact with an individual who has received a positive diagnosis, for at least 14 days since the employee’s last contact with the individual.
Determine, in consultation with the employee if possible, what other employees may have been in contact with him or her and: (i) notify those employees that a “co-worker” received, or was in close contact with an individual who received, a positive COVID-19 diagnosis; and (ii) require those employees not to report to work for at least 14 days from their last contact with the relevant employee.
Consider what other measures may be appropriate in the circumstances, having regard for the employer’s office setting and the information that was disclosed—for example, closing the office in its entirety; asking an entire floor of an office to work remotely; arranging for additional cleaning all high touch services; etc.
Employers must take the necessary measures to protect the health and ensure the safety and physical well-being of their works. To this end, measures must be taken to identify, control and eliminate COVID-19 in the workplace. Note that the inspectors of the Commission des normes, de l’équité, de la santé et de la sécurité du travail could demand the closure of a workplace until the employer takes corrective action, in the event that a workplace is found to be unsafe due to COVID-19-related risks.
If an employer learns that an employee is experiencing flu-like symptoms or has been in contact with an individual experiencing flu-like symptoms, it should consider suggesting that the employee seek medical advice and if the employee is experiencing flu-like symptoms, ask him or her to leave the office to seek such advice. It may also be appropriate, depending on the circumstances, to:
Ask an employee who is experiencing flu-like symptoms not to report to work for 14 days.
Notify other employees of the issue and/or take other steps (including those described above).
We note that although the employer does not have an obligation to report to the Public Health Agency of Canada, if an employee reports experiencing symptoms of the virus, it should encourage the employee to do so.
What are an employer’s health and safety obligations to employees working from home?
Employers normally have obligations under provincial occupational health and safety legislation to ensure the workplace meets certain health and safety requirements and to report injuries which occur in the workplace. In Québec, the key occupational health and safety laws do not contain dispositions dealing specifically with remote work. However, employers of employees who work from home are bound to the same health and safety obligations as those employers whose employees carry out their work on the premises of the employer.
With an increasing number of employees working remotely in light of COVID-19, employer obligations in this regard have become more difficult to ascertain. However, employers should not lose sight of these obligations and should seek legal advice in respect of them.
An evolving situation
As the COVID-19 situation continues to evolve, the guidance provided in this bulletin may also be subject to change. We therefore recommend that employers seek legal advice in respect of the issues noted above, and other employment-related decisions being considered in connection with COVID-19.
1 A dismissal for economic reasons (un licenciement) is the act by which an employer permanently terminates an employment contract for economic or technological reasons. The recourse under article 124 ARLS which protects employees with two years or more of uninterrupted service with an enterprise against terminations without a good and sufficient cause (congédiement) is not applicable to dismissals for economic or technological reasons
2 Article 82.1(4) ARLS.
3 For example, Stepanian c. Réseaux sans fils Calamp inc., 2018 QCCS 611 and Mercure c. Bell Nordic inc., 2019 QCCS 280.
4Groupe Lelys inc. c. Lang, 2016 QCCA 68, para. 19.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.