COVID-19 Update: Questions and Answers for Municipalities
Date: April 8, 2020
On March 17, 2020 the Ontario government declared a state of emergency under the Emergency Management and Civil Protection Act (EMCPA). This has been followed by a series of Orders that have significant operational impacts on municipalities.
In this FTR Now, we take a look at some of the issues facing municipalities and flag for you several questions that municipalities should be thinking about moving forward. This FTR Now should be read along with our other general publications on the COVID-19 pandemic. These insights can be found at our Coronavirus (COVID-19) Resource Centre.
Readers should be aware that municipal stakeholders have recently requested the issuance of a provincial emergency order akin to the one issued and applicable to Long-Term Care Homes (including Municipal Homes for the Aged). If one is introduced, the observations noted below will have to be reviewed within the context of the details of any such order.
Background Information – What Areas of Your Business Are Affected by Government Orders?
There are three main impacts on municipalities that have come about as a result of the Orders under the EMCPA.
First, the closure of a number of municipal facilities or locations was ordered, including:
- Facilities providing indoor recreational programs (ordered on March 17, 2020 and subsequently extended to April 13, 2020)
- Public libraries (ordered on March 17, 2020 and subsequently extended to April 13, 2020)
- Child care centres under the Child Care and Early Years Act, 2014 (ordered on March 17, 2020 and subsequently extended to April 13, 2020), and
- Outdoor playgrounds, portions of park and recreational areas containing outdoor fitness equipment and outdoor sports facilities with the exception of maintenance of these facilities, which continues to be permitted (ordered on March 30, 2020 for 14 days with possible extension)
Subsequent amendments have permitted the re-opening of certain child care centres to provide child care for frontline workers.
Second, on March 23, 2020, the government ordered the immediate closure of “non-essential businesses.” This Order does not apply to municipalities (which are exempted as the Order does not apply to “government”). However, to reduce the public health risk in their community, municipalities have been taking action to reduce the operation of non-essential parts of their operations.
Third, the government has issued Orders to give long-term care homes (including Municipal Homes for the Aged), water works and public health authorities significant latitude in addressing staffing issues arising out of COVID-19.
A full list of these Orders is outlined in our Human Resources Legislative Update blog post, The Orders Made Under the Emergency Management and Civil Protection Act in Light of COVID-19 – What Are They?
These Orders and closures have had significant impacts on all employers, including municipalities. In light of these continuing developments, municipalities need to ask themselves a number of key questions about what they are doing with their with the staff and how their business will continue to operate.
Questions to Consider if Minimizing Staff Reductions is an Objective
Many municipalities have been exploring options to minimize the impact of the Orders on their workforce by determining whether they can respond to the Orders in a way that minimizes staff reductions.
- Can departments run remotely? For how long? Although this may be difficult for departments requiring on-site work, there may be jobs within the municipality or operations that can be supported by employees who are teleworking.
- Do we have a policy for working from home? There are a number of health and safety and other liability issues that factor into a work from home arrangement. A proper work from home policy that addresses and minimizes these legal issues is critical.
- Do we have measures to protect data security while people are working from home? Municipalities need to consider the data and cybersecurity risks associated with the telework, including risks associated with remote access, data leakage, credentials and incident response.
- Are there employees who cannot work from home? Employees may have obligations or restrictions that impact their ability to work from home (e.g. child care obligations). Municipalities should remain flexible and options should be explored with these employees on a case-by-case basis to develop a strategy that allows them to perform productive work at home.
- If we can’t work remotely, are there options to redeploy employees? While the Orders to date have afforded flexibility in managing long-term care and public health operations, among others, the terms of collective agreements in other areas of municipal operation may have restrictions on redeployment which will require further considerations. This is a complex area for consideration.
- Where can we redeploy employees? Municipalities may be looking to redeploy individuals within the bargaining unit, in other bargaining units or with other related employers (e.g. to the long-term care home). Each of these scenarios raise unique questions that need to be considered.
- What about in long-term care? Different rules regarding redeployment apply to long- term care, water and public health, in light of the provincial Orders. Municipalities should consult legal counsel prior to making any such redeployment decisions.
What Do We Need To Know About Employment Standards Act, 2000 (ESA) Leaves?
With its declaration of an emergency under the EMCPA in March, the Ontario government triggered entitlement to an existing ESA leave, the Declared Emergency Leave (DEL). It also amended the ESA to introduce a new leave, the Infectious Disease Emergency Leave (IDEL). Both of these leaves may be available to municipal employees in different circumstances. In light of this, municipalities need to be keeping the following questions in mind:
- Are employees entitled to the DEL? Employees are entitled to an unpaid, job-protected DEL if they are unable to work because they are subject to an Order made under the EMCPA. As noted above, the March 17, 2020 Order required the immediate closure of a number of facilities. Employees working in these facilities may therefore be entitled to a DEL if there is no work available for them. They may also be eligible for DEL because of an order made under the Health Protection and Promotion Act (HPPA)orbecause the employee is needed to provide care to specified individuals. These latter circumstances will usually need to be determined on an individual level.
- When will this entitlement end? The March 17, 2020 Order was extended on March 30, 2020 until April 13th and can be further extended by the Legislature for periods of not more than 28 days. Entitlement to the DEL will generally end when the declared emergency is terminated or disallowed.
- Do we have employees who are entitled to the Infectious Disease Emergency Leave (IDEL)? The criteria to be entitled to IDEL is very different. The IDEL is currently available to any employee who is unable to work because:
(1) the employee is under individual medical investigation, supervision or treatment;
(2) the employee is subject to an order of a medical officer of health or a court under the HPPA;
(3) the employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health;
(4) the employer directs the employee to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease;
(5) the employee is providing care to any of the specified individuals, including because of closures of schools and daycares;
(6) the employee is directly affected by travel restrictions preventing the employee from returning to Ontario or
(7) any prescribed reason.
- How long can these employees be on IDEL? The IDEL (unlike the DEL) does not have a finite end date. It is designed to last as long as COVID-19 remains designated by regulation and the employee is unable to work because of one of the reasons above. This means that employees may be on this leave for varying (and lengthy) periods of time.
- How are benefits treated on these leaves? Generally, municipalities must ensure that benefits are continued during both the DEL and IDEL, though exceptions for certain kinds of benefits may apply, and employees would need to continue their share of benefit costs (if applicable).
- Do we have to continue OMERS contributions? An employee on a DEL or an IDEL can purchase the period of the leave. If the employee chooses to do so by the required deadline, the employee will pay the employee’s portion of the contributions and the municipality will pay its portion. In other words, employees will have the option to buy back their OMERS service once the leave is completed. Employers should bring this option to the attention of employees and be careful to direct employees to OMERS for information about eligibility to purchase OMERS service for the period of the leave and the timing for doing so. The municipality will be responsible for reporting the leave to OMERS on the appropriate form and giving the member the opportunity to elect to purchase the leave in the same manner as for other statutory leaves, like pregnancy and parental leaves.
- What about other leave entitlements under the ESA? In addition to the DEL and IDEL, there may be other leaves under the ESA or a specific collective agreement that would be applicable to the current circumstances. Employees continue to be entitled to use those leaves.
- Can we ignore our collective agreement? Unless specifically authorized by Order (e.g. long-term care homes), collective agreements generally continue to be in force notwithstanding a declared emergency.
What Do We Need to Consider in Reducing Staff?
Unfortunately, tough decisions regarding reductions in staffing might be required. The leaves noted above may address these issues, but municipalities may need to consider temporary layoffs and other options. Before moving forward, municipalities need to ask themselves:
- What if these employees may be entitled to DEL or IDEL? Consideration needs to be given to whether employees would have a right to take DEL or IDEL. As these are job-protected leaves, this may impact a municipality’s ability to lay these employees off work. Municipalities should consult legal counsel for assistance with addressing these situations.
- Are employees unionized? Layoffs for unionized employees would be in accordance with the provisions of your collective agreements. Are there notice provisions under the collective agreement? Do employees have bumping rights and how can you manage these?
- What if our employees are non-unionized? Municipalities considering the layoff of non-unionized employees should be looking to the temporary layoff provisions of the ESA and the terms of the employee’s employment contract/offer letter.
- Have we considered the risks of constructive dismissal? The common law right to temporarily lay off employees can be contentious in the absence of specific language providing for such layoffs in an employment agreement. In crisis situations, any actual risk may be significantly mitigated, but it is a risk that municipalities must be mindful of and warrants further discussion and consideration in most cases.
- Are employees who are laid off entitled to have their benefits continued? Generally speaking, employers are not required to maintain benefits while an employee is laid off. However, municipalities may choose to continue benefit coverage, provided the terms of their benefits plan allow for it. For unionized employees, municipalities must check the terms of the collective agreement to determine if there is entitlement during a layoff.
- Do we have to continue OMERS contributions for employees who are laid off? No. Under the terms of the OMERS Plan, periods of layoff are not considered pensionable service and are not eligible for buyback.
- What about seasonal employees or summer students who have been offered employment but have not started work yet? Municipalities may have hired fixed term employees who have not yet started work and may be considering delaying or rescinding those offers of employment. These are complex employment issues and municipalities should not proceed with these decisions without consulting legal counsel.
- How many employees do we expect will be laid off? Different rules apply under the ESA if you could potentially be laying off 50 employees or more. If your municipality’s staffing reductions will include 50 or more employees, legal counsel should be consulted to address these issues.
- Is there work that is going to need to be performed in the near future that we haven’t accounted for yet? There may be work that doesn’t need to be performed now but that will require staffing in the future. Municipalities should be mindful of recall rights to ensure that they will be able to properly staff when this work arises and the general availability of staff in those scenarios.
- Can we implement reduced work weeks or across the board compensation decreases? Municipalities may be exploring alternative options to address the impact of the COVID-19 pandemic, including options that reduce compensation to employees. The ability to do so may be impacted by the language of your collective agreement or operative employment contracts. The use of such approaches are complex, whether in a union or non-union setting, and municipalities should not proceed with these options without consulting legal counsel.
What Financial Supports Can We Explore?
Many municipalities are struggling to balance the pressure to reduce staff and to be fiscally responsible, with the desire to protect their employees from financial hardship. As a result, municipalities may be considering financial or other options to assist their employees who are going to be forced off work. If you are considering these options, you should consider:
- Can employees use their banked vacation/overtime/lieu time? Municipalities may want to explore allowing employees to use banked vacation/overtime/lieu time prior to placing them on a leave or layoff. Such a determination will be based on your vacation policy and/or collective agreement language surrounding these entitlements.
- Can we force employees to use this time? This will be dependent on the specific language of your vacation policy and/or collective agreement.
- Can we let employees “borrow” this time? Municipalities may want to consider allowing employees to “borrow” vacation/overtime/lieu time that they have not yet earned. Again, these issues are complex and legal counsel should be consulting before you go forward with this option.
- What financial options are available to employees who are off work? Employees may be entitled to the new Canada Emergency Response Benefit (CERB). This is a form of income support offered by the federal government. Eligible employees will receive $2,000 per four week period in income support for a total period of up to 16 weeks.
- Are all employees off work eligible for the CERB? In order to be eligible, employees need to (1) have an income of $5,000 or more from employment and/or pregnancy/parental EI benefits and/or certain provincial allowances in the 12 months preceding the application, (2) be at least 15 years old and a resident of Canada (3) “cease working for reasons related to COVID-19” and have no employment income (including EI benefits) with respect to at least 14 consecutive days within the four-week period in respect of which they apply for the payment.
- What about the new Canada Emergency Wage Subsidy (CEWS)? Public sector entitles (including municipalities and local governments) are excluded from eligibility for the CEWS at this time.
- Can we do something to offer further financial assistance to employees? Municipalities may be considering options to providing financial assistance to employees (e.g. self-funded leaves, return to work bonuses). These options give rise to many considerations and municipalities should obtain legal advice before proceeding to ensure that employee income entitlements will not be negatively impacted.
- Can we top-up the CERB? At the time of publication, the CERB cannot be topped up. It is hoped that the federal government will clarify as soon as possible whether top-up will be permitted just as it is for Employment Insurance through a registered Supplementary Unemployment Benefit plan.
What Kind of Issues Do We Need to Consider In the Workplace?
In many cases municipalities have been focused on mandated closures and considering what to do with staff. However, given the anticipated continued impact of COVID-19, municipalities need to consider how they are going to continue to operate their workplace. For example:
- What if we need some staff for closed facilities?
- Can we modify vacation scheduling?
- Can we limit employees’ ability to take vacation moving forward?
- How can we ensure social distancing is being practised in the workplace?
- Should we be paying those employees still at work “premium pay”?
- Do we need to be providing Personal Protective Equipment (PPE)?
- What if employees refuse to come to work?
- Can we use contractors or outsource certain work?
- Can we ask employees if they are working anywhere else?
- Can we restrict employees from working elsewhere?
- How should we deal with meetings (e.g. staff meetings, committee meetings, performance reviews, disciplinary meetings)?
- Can we delay normal meetings?
- How do we deal with employee absences?
- Should we be screening employees (e.g. temperature screening, questionnaires)?
- Do we need to worry about enhanced cleaning?
Although the questions listed above may seem daunting, we have only scratched the surface.
You are no doubt facing a whole host of other issues related to your continuing operations. Every municipality is unique and may be dealing with issues specific to its operations or staff. Further, as things continue to change and orders continue to be made, municipalities need to be prepared to adapt and address these new issues. Hicks Morley continues to be here to assist you through those changes. In light of this, we want to leave you with two final takeaways:
Communicating With Your Employees (and Your Unions) About COVID-19
One of the most important strategies for employers addressing the COVID-19 pandemic is regular and clear communications with employees and unions, where applicable. It is important to communicate with employees to assure them that the municipality is addressing the situation, is taking steps to ensure a safe workplace and that you are actively monitoring and responding to developments as they occur.
Maintaining these communications clarify expectations and minimize the impact of operational issues down the road. It helps to reduce panic, as your employees are informed about what you know and what you are doing to ensure their safety. Communication also lets employees who are off work know that you are continue to be there to provide support and that you are taking action to try to return them to work as soon as possible.
Don’t Forget About Mental Health!
With all of the news about COVID-19, the constant reminders about physical distancing, and the significant impact on employees across the board many people are feeling on edge. These are unforeseen circumstances that most individuals in your organization would never have imagined, let alone experienced before. It is normal for people to feel overwhelmed, stressed, anxious and upset at these times. Although there is a lot of talk of physical health and preventing the spread of COVID-19, this cannot come at the expense of your employees’ mental well-being.
As an employer, you have an obligation to ensure that you are considering the mental health of your employees. Employees should be informed of the Employee and Family Assistance Program (EAFP) and be provided with contact information to ensure that they can access these programs where they would like to do so. They should also be reminded of the importance of staying connected with their families and friends and of taking time to check in on their mental health. You should ensure that you remain a resource for employees who may be struggling through this time.
For more information or assistance with the issues raised in this FTR Now, please contact Stephanie Jeronimo at 416.864.7350, Amanda Cohen at 416.864.7316, Grant Nuttall at 416.864.7262, Mark Mason at 416.864.7280, or your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©