WORKING AT THE TIME OF COVID-19
The current climate in connection with the COVID-19 pandemic has had a significant impact on Québec businesses. This includes forcing employers to review their working methods and the application of health and safety standards and, in some cases, this causes administrative reorganizations.
This article is a reminder of certain principles relating to labour and employment law that are being tested in this time of crisis.
Employer’s duty to protect the health and ensure the safety
The Act respecting occupational health and safety (the “Act”) provides that every employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his worker [1].
While the Québec government has imposed the closure of all non-essential businesses, effective at midnight on March 24, 2020, the above-mentioned security duty imposed on the employer is imperative in the fight against the COVID-19 pandemic. Indeed, it is essential for each corporation that does not offer essential services to comply with this new government directive, which is part of a common desire to stop the spread of the virus and above all, to protect the health of citizens.
Maintaining the opening of businesses offering non-essential services, or the absence of appropriate sanitary measures in businesses offering essential services, such as food markets, could jeopardize the health and safety of employees. A corporation that would fail to fulfill its duty to ensure safety and health protection, as well as its directors, could face significant fines, which could reach the amount of $60,000 [2], under the Act.
Faced with such a situation, an employee could refuse to perform his work. In fact, the Act provides that “a worker has a right to refuse to perform particular work, if he has reasonable grounds to believe that the performance of that work would expose him to danger to his health, safety or physical well-being, or would expose another person to a similar danger”. Failure by employers to comply with government directives could pose a risk of contamination with COVID-19, which would most likely justify the exercise of this right of refusal.
Employee layoff
In recent weeks, COVID-19 has resulted in a significant slowdown in the operations of many businesses, even forcing some to lay off workers to ensure their viability.
The layoff ordered by the employer for an economic reason temporarily suspends the contract of employment between the employer and the employee. In other words, a laid-off employee may be called back to work. The employee retains his employment relationship for the duration of his layoff and, therefore, the contractual relationship is maintained.
A layoff considered for a period of more than six (6) months or which will last for such a period will oblige the employer to give the employee written notice of his temporary termination of employment or to pay him compensation in lieu of notice, all in accordance with the provisions of the Act respecting labour standards [3].
However, the Act respecting labour standards provides that the employer is not bound to the foregoing obligations if the layoff results from a case of force majeure [4], an unforeseeable and irresistible event [5] to which the pandemic COVID-19 could be assimilated. As such, consulting legal advice could be beneficial.
Easing Measures
Faced with the current situation, all employers are encouraged to review their policies, in particular by, among other things, increasing the number of paid sick leave that an employee is authorized to take, by allowing employees to use their vacation days as paid leave or even by adjusting the terms of the work performance in the context where it is possible by telework. Employers should therefore be innovative and creative in order to retain the workforce they have.
By Mathieu Tremblay
[1] Article 51 of the Act respecting occupational health and safety, chapter S-2.1;
[2] Supra note 1, art. 237;
[3] Article 82 of the Act respecting labour standards, chapter N-1.1;
[4] Supra note 3, art. 82.1;
[5] Force majeure was the subject of a detailed review in an article published on March 23, 2020, on this same blog.