Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Employment standards variances in Alberta

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

Alberta’s government recently enacted substantial amendments to Alberta’s Employment Standards Code (ESC), through the Restoring Balance in Alberta’s Workplaces Act, 2020.

The stated purpose was to “save employers time and money.”

Section 63 of the ESC now deems layoffs over 90 days within a 120 day period to be terminations. Pursuant to section 63.1 of the ESC, layoffs for reasons related to COVID-19 are deemed to be terminations after 180 consecutive days.

Employees who have been laid off by Alberta employers since March 15, 2020 have now been laid off for over 180 days.

Unless an exception applies, or a variance or exemption is obtained, the ESC requires employers to give those employees notice of termination, or pay in lieu of that notice. The amount of that notice or pay varies depending on the employee’s length of service.

Alberta Variances To Extend Temporary Lay-offs

Section 74 of the ESC allows the Director of Employment Standards to vary or issue exemptions from one or more provisions of the ESC or the Employment Standards Regulation (ESR).

Section 74.1 of the ESC also allows the Minister to issue orders varying or exempting from one or more provisions of the ESC or the ESR.

Employers, employer associations and groups of employers may apply for Director’s variances and exemptions and Ministerial orders.

Applications made through employer associations and groups add a level of obscurity to the identity of the employers underlying them.

Section 74(3) allows the Director of Employment Standards to issue a variance or exemption only if the provision to be varied or exempted and the extent of the variance or exemption is authorized by the regulations.

Previously, the Director and the Minister had to be satisfied that the criteria in the regulations were met. One factor they were required to consider was whether affected employees supported the variation or exemption. This did not apply to applications by employer associations or groups. Now, this requirement has been removed altogether.

Section 43.86(1) of that ESR states that the Director may issue a variance or exemption with respect to certain specific provisions. Section 63 and 63.1 are not currently among those provisions.

However, the Restoring Balance in Alberta’s Workplaces Act, 2020 states that regulations may be made retroactively.

It is unclear how many applications for variances, exemptions or Ministerial orders are refused.

Employee Opposition to a Variance, Exemption or Ministerial Order

A variance can be approved in the face of employee opposition. The ESC no longer requires employers, employer associations or groups to consult with employees and does not require disclosure to the Employment Standards Branch how many employees opposed the application.

Section 74(7) requires employees affected by a variance or exemption to comply with it and with any terms and conditions of the variance or exemption. That includes those who opposed it. A similar requirement exists for Ministerial orders.

Informing Employees of the Decision

Once a variance is granted, section 74(6) of the ESC requires an employer to whom the variance or exemption applies to provide a copy of it to each employee to whom the variance or exemption applies.

Once a Ministerial order is made, section 74.1(6) requires a copy to be given to the affected employees in accordance with the regulations.

One permitted way of notifying employees of a Director’s variance is to post it online on a secure website to which the employees have access.

However, many employees who work on outdoor work sites, in vehicles or in other industrial settings may not frequently access their online accounts.

Employees who have not been meaningfully notified of the decision or order may have no idea that their legal rights have been altered.

Alberta maintains online registries of Director’s variances and Ministerial orders which vary or provide exemptions from the ESC.

Between January 1, 2018 and June 25, 2020, the Director granted variances to over 150 employers. As of the time of writing, the Directors’ variances registry has not been updated since June 25, 2020.

Section 74(8) and s. 74.1(5) allow variances and exemptions issued by the Director and Ministerial orders to be varied or revoked.

And so…

These provisions engage fundamental policy questions.

Should the cost of the covid-19 crisis be borne by individuals? Or employers?

Employment standards legislation exists to assure that all employees have at least a minimum level of protection.

If employee rights are subject to erosion at the first whiff of a possible crisis, we must ask whether employees in Alberta have any meaningful rights at all.

In case you missed it?

Temporary layoffs during COVID-19

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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