Managing the COVID-19 Pandemic: Information for First Nation Governments and Businesses

In these unprecedented times, First Nations governments, organizations and businesses are facing new, complex and rapidly evolving challenges that impact almost every aspect of their operations. Every day brings more news about COVID-19 and what governments are doing to help protect and support people, communities and businesses through the pandemic.

First Nations communities are particularly vulnerable to the impact of this disease and there are many unique factors they must address in adapting to the pandemic.

This bulletin sets out some key considerations for First Nation governments, organizations and businesses and includes many resources to help you understand how COVID-19 may impact your community or organization. We also include summaries of available information on recently announced government support initiatives.

Please note that the content in this bulletin is provided for general information purposes only and does not constitute legal advice. If you have specific questions or require advice, we encourage you to contact our office. We remain fully operational and ready to help.

The information in this bulletin is current to August 12, 2020.

RE-OPENING PLANS

The provinces and territories have released plans for re-opening their economies and societies. These multi-phase plans include the slow reintroduction of non-essential services and gradual reduction of restrictions on certain activities. Re-opening is not a return to normal, but an easing of certain restrictions to permit businesses and organizations to commence operations. Many restrictions will continue to be in place and the level of restriction varies by jurisdiction.

Social (physical) distancing, handwashing, non-medical masks in some circumstances and excellent hygiene practices remain critically important. General advice remains to avoid non-essential travel and that people who can stay home should continue to do so.

Any First Nations organizations and businesses that are now permitted to resume or expand operations must ensure they comply with all current orders and recommendations of the public health officer in their jurisdiction. The restrictions and guidelines may change over time as the public health officers continually assess the impact of re-opening on infection rates and the anticipated load on the health system. Some First Nation communities may also be subject to their own restrictions that are more stringent than the public health officer orders and recommendations.

As we move into this next stage of the pandemic, First Nations will need to stay current on guidance from public health authorities to ensure safe re-opening of their communities. Below are links to re-opening plans by jurisdiction. We also recommend you check provincial and territorial public health officer pages frequently.

Re-opening Guidance for First Nations and Indigenous Organizations:

Indigenous Services Canada offers many COVID-19 supports for First Nations and Indigenous organizations, but does not appear to be providing specific reopening guidance at this time. Look to health authorities in your jurisdiction for specific guidance. In British Columbia, the First Nations Health Authority provides guidance and resources to guide Indigenous individuals, community leaders and service providers.

Re-opening Plans by Jurisdiction

This site is regularly updated and provides a summary of what the rules are in each provincial/territorial jurisdiction. In addition, you can visit the below websites for information directly from each jurisdiction.

Canada:

COVID-19-related travel restrictions and quarantine/self-isolation orders remain in place. The border between Canada and the United States continues to be closed to non-essential travel. The closure was recently extended to August 21, 2020 with speculation that it may remain in place for many months to come. For more information on this and other matters, see Canada’s comprehensive COVID-19 Information Site. 

British Columbia:

British Columbia continues to extend the state of emergency in 14 day increments. BC has released its Education Restart Plan and introduced the COVID-19 Related Measures Act. The legislation enables provisions created for citizens and businesses in response to the COVID-19 pandemic to continue as needed should the provincial state of emergency end. More details can be found in the “Protecting Communities” section of this bulletin

Alberta:

Saskatchewan:

 Manitoba:

 Ontario:

Quebec:

 New Brunswick:

Prince Edward Island:

 Newfoundland and Labrador:

 Nunavut:

 Northwest Territories:

 Yukon: 

RE-OPENING: RETURN TO SCHOOL

Provinces and territories are opening back up and announcing plans for students to return to school in September; though there continues to be uncertainty around what measures will be in place. First Nations schools will need to coordinate with the school districts andhealth authorities in their jurisdiction to develop re-opening plans that will work for their community. In British Columbia, school districts and independent school associations, including First Nation schools, are required to submit a re-opening plan to the Province. At a minimum, school administrators are obligated to provide a safe workplace for their employees and students. Please visit the Employer Obligations and Re-opening portions of this bulletin for additional information.

For employers, re-opening schools will have big impacts on the workplace. While more employees may be able to return to work (whether physically or working more hours), there is a risk of increased absences if employees have to self-isolate due to exposure through their children. During this transition and period of uncertainty, employers should ensure they are up to date with their and their employees’ legal rights and obligations.

Each jurisdiction has their own plan for re-opening schools. Please consult the quick reference guide to access links for further information about schools re-opening. Some First Nation specific guidance is available through the First Nations Schools Association of BC and from The Council of Yukon First Nations

QUICK REFERENCE GUIDE: STAY AWARE OF FUTURE CHANGES

Most of the legislation implementing federal, provincial and territorial support programs has been drafted to allow the governments to adapt to rapidly changing circumstances and to make quick modifications to criteria, amounts and timing. The specifics of some of these programs have not yet been released and more changes may be yet to come. Guidance from health experts also changes frequently as we learn more about this disease.

We recommend you check government webpages frequently to stay current on directions from health experts and the details of government support initiatives. Federal, provincial and territorial governments have now created one-stop information hubs that provide links to COVID-19-related programs, services and information.

Canada COVID-19 Information Site:

https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html 

British Columbia’s Response to COVID-19: https://www2.gov.bc.ca/gov/content/safety/emergency-preparedness-response-recovery/covid-19-provincial-support

 Yukon Information about COVID-19:

https://yukon.ca/covid-19

 COVID-19 in Northwest Territories:

https://www.gov.nt.ca/covid-19/

 Nunavut COVID-19 Hub:

https://www.gov.nu.ca/health/information/covid-19-novel-coronavirus

 Alberta COVID-19 Info for Albertans:

https://www.alberta.ca/coronavirus-info-for-albertans.aspx

Saskatchewan COVID-19 Hub:

https://www.saskatchewan.ca/government/health-care-administration-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-coronavirus

Manitoba COVID-19 Hub:

https://www.gov.mb.ca/covid19/index.html

Ontario COVID-19 Hub:

https://covid-19.ontario.ca/

Quebec COVID-19 Hub:

https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/

Newfoundland COVID-19 Hub:

https://www.gov.nl.ca/covid-19/

New Brunswick COVID-19 Hub:

https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19.html

Nova Scotia COVID-19 Hub:

https://novascotia.ca/coronavirus/

Prince Edward Island COVID-19 Hub:

https://www.princeedwardisland.ca/en/topic/covid-19

SUPPORTS FOR INDIGENOUS COMMUNITIES

Indigenous Services Canada (ISC) has provided a guide for accessing additional supports during the COVID-19 pandemic. To find out more about what is available in your province or territory, contact your regional office.

Provincial and territorial governments have also announced COVID-19 supports specifically for Indigenous peoples, governments and organizations. Indigenous leadership should be aware for the supports that available in their jurisdiction. We provide some links below. More information is available at the information hub for each jurisdiction (see Quick Reference Guide above).

Federal Government: 

British Columbia:

·         COVID-19: Information for First Nations and Indigenous Peoples in BC https://www2.gov.bc.ca/gov/content/governments/indigenous-people/covid19

Ontario: 

 

PROTECTING COMMUNITIES: STATES OF EMERGENCY, RESTRICTIONS ON TRAVEL, EMERGENCY LAWS

All the provinces and territories have now declared states of emergency. These orders do not override the jurisdiction of First Nations governments. Local states of emergency declared by band council resolution or by declaration continue to apply. In addition, some provinces and territories have added restrictions on non-essential travel, including reduced access to public transit and border checkpoints to regulate access entirely. You can look up the rules specific to your province or territory at this site, which is regularly updated.

COVID-19 poses an immediate and serious threat to First Nations communities. The challenges facing First Nations on an ordinary basis, including inadequate overcrowded housing, high levels of underlying health conditions, poverty and limited access to necessities, like food, clean water and medical services make them particularly vulnerable to a COVID-19 outbreak. The risk to vulnerable Elders and knowledge-keepers is also an existential threat to their language and culture. There have been several confirmed cases of COVID-19 in First Nations communities across Canada and many First Nations are calling for strict measures to try to protect their people, including community lockdowns.

Canada’s military is ready to respond to COVID-19 outbreaks in remote Indigenous communities by providing medical personnel, field hospitals, supplies and more. British Columbia has committed to supporting First Nations in managing COVID-19 through agencies, including Emergency Management BC and First Nations Health Authority.

All First Nations should communicate with their provincial or territorial emergency management agencies to ensure they understand provincial/territorial restrictions and to obtain support for emergency measures. In addition, it will be important to coordinate with local law enforcement, membership and the local media to ensure that everyone is aware of the measures that are being put in place.

Continuity of Governance and Administration -Remote Operations and Best Practices

Many First Nations governments have moved to remote operations during the pandemic. This can present a challenge to continuity of operations and governance. We recommend establishing policies, laws and procedures to formalize remote operations and to ensure decisions of government are validly made. These should include authorizing Council meetings to be conducted by video or teleconferencing and establishing best practices for those meetings to ensure member participation and to preserve confidentiality where appropriate. Councils should also establish rules for the use of digital signatures to formalize resolutions, enactment of laws and other governance documents and for other measures that enhance social (physical) distancing measures. Now, even more than ever, it is vitally important that detailed minutes are taken of all Council meetings and properly stored.

Community Protection Laws

Many First Nations are taking measures to protect their communities by enacting emergency laws and bylaws to support measures such as restricting access to their reserves, requiring members to self-isolate and establish other rules critical to preventing COVID-19 spread in their communities as ordered or recommended by public health officers. Properly drafted laws and bylaws, combined with strong educational outreach in the community and coordination with local law enforcement can create reasonably effective enforcement of these important health and safety rules. First Nation governments are primarily responsible for the administration and enforcement of their bylaws, including those related to the COVID-19 pandemic. However, the Public Prosecution Service of Canada will.

We can assist with development and implementation of governance policies, emergency bylaws, coordination of agencies, enforcement options and other measures.

COVID-19 Relief Measures Act (BC):

In June, British Columbia announced the COVID-19 Related Measures Act to allow emergency provisions enacted in response to the pandemic to be formalized and extended past the provincial state of emergency by a period of 45 or 90 days. These include:

  • Electronic Attendance at Corporate and Statutory Meetings (90 days);
  • Electronic Attendance at Credit Union Meetings (90 days);
  • Suspension of Limitations Periods (90 days);
  • Protection Against Liability for Persons working in Essential Services(45 days);
  • Electronic Witnessing of Enduring Power of Attorney and Representation Agreements (90 days); and
  • Verbal confirmation of any requirement under the Employment and Assistance Act and Employment and Assistance for Persons with Disabilities Act (90 days)

In anticipation of a second wave, the Act further provides for a possible extension of Ministerial Orders for up to one year and empowers the provincial government  to “do all acts and implement all procedures that the minister considers necessary”.

Please contact us if you have any questions regarding how the COVID-19 Relief Measures Act may affect you or you business.

CHILDREN, YOUTH AND FAMILIES

The COVID-19 emergency is placing unique strains on the efforts of First Nations leaders to bring about fundamental legislative reforms to improve the lives of First Nations children, youth and families.

Indigenous Services Canada has indicated that youth who have reached the age of majority will continue to receive supports for at least 6 months, or as long as the outbreak lasts. An additional $207.5 million has been allocated to support those experiencing homelessness and women/children fleeing gender-based violence during the pandemic, including $10 million specifically allocated to ISC shelters on-reserve and in Yukon supporting Indigenous women and children fleeing violence.

Bill C-92, An Act Respecting First Nations, Inuit and Metis children, youth and families was given Royal Assent on June 21, 2019 and came into force on January 1, 2020.  This new federal legislation provides a “national” regulatory framework supporting and implementing the inherent self-government powers of Indigenous governing bodies over child and family welfare, including giving priority to Indigenous laws over federal and provincial laws.

Significant efforts have been underway to establish Indigenous child and family services laws and processes under the new federal legislation. However, this work has only just begun and, for most, the provincial and territorial regimes still apply. Having these legacy systems continue during the COVID-19 crisis may result in many problems for families and communities. The prohibition on visiting children and youth in care, limits on doing necessary work reconnecting children and families, and reassessment placement with return of children to community placement, are all potentially on pause.  However, this should not be the case and work in this area must continue.

Many First Nations are taking emergency measures to address the safety and well-being of their citizens during the pandemic, including declaring states of emergency and passing bylaws that restrict access to their communities. It is important that these measures include continuing efforts to implement the new federal legislation and support Indigenous legal orders. For example, emergency bylaws should include provisions that ensure child and family services work can continue.

 Resources are available to support the work of First Nations, Metis and Inuit governments in relation to children and families. Senior Counsel at Woodward and Company, Mary Ellen Turpel-Lafond, has authored a number of guides and materials to support planning, including the “Primer on Practice Shifts required with Canada’s Act Respecting First Nations, Inuit and Metis Children, Youth and Families Act.”

For assistance or further guidance, please contact our office.

ELECTIONS

Many First Nations across Canada are facing upcoming elections and are concerned about whether and how to proceed in the face of the COVID-19 pandemic. If a Council’s term is coming to an end soon, they could be in the position of deciding between following election legislation and risking the health and safety of their members.

On April 16, 2020, Canada announced it has introduced a temporary regulation to allow First Nations councils to extend their tenure for a limited period of time to accommodate the postponement or cancellation of elections during the pandemic. The First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) covers elections under the Indian Act and the First Nations Election Act, allowing for cancellation, postponement, extension of tenure and circumstances where elections took place in the 30 days prior to enactment of the regulation. For First Nations who operate under a custom election code, the regulation empowers the First Nation to extend the council’s tenure even if the custom election code does not provide for such a situation.

As provinces and territories “flatten the curve” and society begins to re-open, First Nations may choose to proceed with upcoming elections. In such a scenario, First Nations should take all possible measures to ensure safety of voters and poll workers, including enforcing social (physical) distancing, ensuring appropriate hygiene measures are in place and providing personal protective equipment where necessary and/or possible.

Please contact us for legal advice on how the First Nations Election Cancellation and Postponement Regulations may affect your Nation.

GENERAL OPERATIONAL CONSIDERATIONS

First Nation governments and businesses have and will continue to be impacted by the current global pandemic for the foreseeable future. We can assist with developing and implementing these necessary operational adaptations.

First Nations governments will need to put in place the necessary tools to permit them to govern and operate remotely. This may include establishing procedures for holding duly convened Council meetings by tele- or video- conference and ensuring band council resolutions are properly passed in accordance with the requirements of the Indian Act.

First Nations governments and corporations alike may benefit from purchasing digital signature software to facilitate remote signatures on governance documents, correspondence and contracts.

As employers, these organizations will have to juggle competing interests, including their obligations to maintain a safe workplace, the rights of the employees to take leave or refuse work, delivering essential programs and services to First Nation members, and to protect First Nation businesses and prevent serious financial loss.

It will be important to stay informed of the evolving situation as the situation is changing daily and to plan for:

  • Increased need for sanitizing and hygiene measures and supplies
  • Increased staff absences
  • Decreased member/customer engagement in public places
  • Disruption of essential services, transport and supply chains
  • Increased demand for certain products and services
  • Cancellation or disruption of travel, especially cross-border
  • Increased demand on tech equipment, broadband and other tools for working remotely
  • Increased demand on health services organizations

Organizations will benefit from developing contingency and continuity plans with the expectation that these changes may be prolonged.

Employers should communicate proactively with employees about their communicable illness and travel policies. They should assess the risk level of the organization, implement strict hygiene precautions and provide current information about self-quarantine requirements, testing, and available resources and supports.

The emphasis on social distancing as a tool to “flatten the curve” and slow the spread of infection means employers need to take into account the organization’s level of exposure, the risk of disruption to supply chains and business operations and flexible plans for resourcing and managing staffing shortages. As provinces and territories begin to ease restrictions, the employer’s obligation to maintain a safe workplace will become increasingly important.

First Nations should track expenses related to COVID-19 preparation, office shutdowns and remote-working, such as medical supplies, disinfectants, software purchases, IT infrastructure, conference call costs and emergency contracts through a dedicated accounting code in the event that emergency funding for administrative and governance costs becomes available.

Several organizations have provided helpful, in-depth planning information designed for small businesses:

EMERGENCY OFFICE CLOSURES AND REOPENING

First Nations may have effected emergency office closures and/or remote working arrangements in response to the COVID-19 pandemic. As reopening plans proceed and First Nations resume operations, we recommend obtaining legal advice on how to proceed safely while limiting potential legal exposure. No one knows how long the pandemic will last, nor when or how the public health recommendations will change. Policies for emergency closures and pandemic disease protocols should allow for a flexible response that can adapt as the situation evolves. Many First Nations have emergency preparation plans or policies already in place; these can be revisited to ensure they meet the current need.

While emergency office closures are in place, whether full or partial closures, working conditions will need to be modified. We therefore also recommend revisiting human resources/personnel policies to ensure they properly address the many employment-related matters that may arise.

We can provide advice and guidance on policies for emergency closures and human resources management to help your First Nation navigate these changes.

 

EMPLOYER OBLIGATIONS

Most First Nations governments fall under federal jurisdiction for employment matters, though certain departments such as health and education may fall under provincial or territorial jurisdiction. First Nation-owned companies generally fall under provincial or territorial jurisdiction.

Because the matter of jurisdiction can be complex, we encourage all organizations to seek legal advice specific to their circumstances and jurisdiction.

COVID-19 has not changed the statutory obligations of employers. However, certain requirements have become more critical during this time. All employers should review their health and safety, sick leave and other policies. If the employer does not have an emergency/pandemic response policy in place, now is a good time to implement one.

Many First Nations and First Nation businesses are requiring employees to continue to work remotely and provide regular communication to their supervisor in order to maintain their salaries. In the event of an emergency closure, First Nations and First Nation businesses should know that they are not obligated to indefinitely pay employees who are not working, including those employees who are unable to work remotely.

Organizations who are considering cessation of wages should seek legal advice specific to their circumstances and applicable jurisdiction.

HEALTH AND SAFETY

All employers are required by law to ensure the health and safety of their workers. This obligation requires employers to ensure they are aware at all times of the most current orders and recommendations of the federal, provincial and territorial public health authorities, particularly with respect to COVID-19.

As provinces and territories begin to relax restrictions, this obligation will take on increasing significance. All employers must institute measures to reduce risk of infection by and exposure to COVID-19 in the workplace. 

  • Provincial and territorial health authorities and the agencies responsible for the safety and health of workplaces are providing job sector and industry-specific guidance on COVID-19 protocols. Because the risks are different across geographic regions, we recommend all employers familiarize themselves with the directions and guidance from local authorities. 

If there is a confirmed case of COVID-19 in a federal workplace, employers must advise the Labour Program at 1-800-641-4049.

Employers should take steps to mitigate the risk of COVID-19, such as:

  • Ensure employees who have symptoms of illness or are feeling unwell do not attend the workplace,
  • Consider whether certain tasks will put employees at a greater risk of exposure,
  • Provide personal protective equipment,
  • Increase hygiene and sanitation practices,
  • Permit employees to work from home as appropriate/possible,
  • Add controls or precautions to Hazard Prevention Programs, and
  • Be aware of any employee travel that may require quarantine or self-isolation and plan accordingly.

We recommend that employers check the Health Canada website and the centre for communicable disease control in their jurisdiction on a regular basis to get the most up to date advice and recommendations regarding prevention measures and their obligations. We also recommend reviewing your health and safety policies to ensure they are adequate to meet the need and seeking specific advice around hazard prevention and COVID-19 safety plans.

PRIVACY

Employers will need to ask employees certain personal questions about their health and, in some cases, conduct health assessments. Privacy laws still apply to restrict the employer’s collection and use of this personal information.

We recommend seeking specific advice regarding these competing obligations around health, safety and privacy.

 LEAVES – * New COVID-19 Leaves*

Employers must be certain to meet their minimum statutory obligations with respect to leaves. In these unique circumstances, employers may be faced with complicated situations, such as employees who are not ill but who are told by the employer to stay home, or employees who refuse to come back to work after safety measures are put in place.

Because employment matters are so fact specific, we recommend seeking specific advice in each case.

Federal, provincial, and territorial governments have developed new job protected “COVID” leaves for employees impacted by COVID-19. All employers should become familiar with any new COVID  leave in  their jurisdictions employment standards legislations and/or regulations.

Canada Labour Code – Sick Leave Amendments and *NEW* COVID-19 Leave

Federally-regulated employees are regularly entitled to unpaid medical leave for up to 17 weeks. On March 25, 2020, the federal government passed Bill C-13, COVID-19 Emergency Response Act which amends the Canada Labour Code (Code) to permit employees who are “unable or unavailable to work for reasons related to [COVID-19]” to take a leave of up to 16 weeks without providing a medical certificate. Employers can request a written declaration setting out the reasons for the leave (Division XIII.01 – Leave Related to COVID-19, s. 239.01(1)). As with other leaves under the Code, this unpaid leave is job-protected, employment is deemed continuous, and benefits continue. An employee may interrupt or postpone their vacation to take the COVID-19 leave, and parental leave may be extended or interrupted by the amount of the COVID-19 leave (ss. 187.1(1) and 187.2(1)). The federal COVID-19 leave is time-limited and will be repealed on October 1, 2020. It will be replaced by a medical leave of absence of up to 16 weeks as a result of quarantine (s. 207.02(1.1)).

Employees may also now take compassionate care leave, leave related to medical illness and medical leave whether or not they provide a medical certificate (s. 168.1(1) and (2)). This temporary change will be repealed on September 30, 2020.

BC Employment Standards Act – Sick Leave Amendments and *NEW* COVID-19 Leave

On March 23, 2020 the Legislative Assembly of British Columbia passed important changes to the ESA.

  • Guaranteed Sick Leave (Permanent): Employees who have worked for at least 90 consecutive days for an employer are now entitled to up to 3 days of unpaid, job-protected leave each year to manage an illness or injury. If requested by the employer, the employee must provide reasonable proof that they are entitled to sick leave at that time. This is a permanent change.
  • COVID-19 Leave (Temporary): The ESA now provides for unpaid, job-protected COVID-19 leave. These changes are temporary and will be repealed when they are no longer necessary. This leave is available to employees if they have been impacted by COVID-19 in any of the following ways:
    • They have been diagnosed with COVID-19 and are following a medical order or advice;
    • The employee is in quarantine or isolation in accordance with an order of the Provincial Health Officer, an order under the Quarantine Act (Canada), or guidelines provided by the BC Centre for Disease Control or the Public Health Agency of Canada;
    • The employer has directed the employee not to work due to their concern about the employee’s exposure to COVID-19;
    • The employee is providing care for a child or adult under their care; or
    • The employee is outside the province and unable to return due to travel or border restrictions.

Employees are protected from termination retroactively to January 27, 2020. An employee who is terminated due to any of the enumerated circumstances is entitled to be re-employed in the same or a comparable position.

Yukon Paid Sick Leave Rebate for employers and *NEW* COVID-19 Leave

The Yukon Paid Sick Leave Rebate supports businesses that do not currently offer paid sick leave to their employees. A business may apply for a rebate of  up to 10 days’ wages for each employee (to a maximum of $378.13 per day) while they are on sick leave and/or quarantined/self-isolating if the business meets three of the following criteria:

  • The business has an office with a physical address in Yukon;
  • The business is subject to the Yukon Income Tax Act;
  • The business is registered pursuant to the Business Corporations Act or the Partnership and Business Name Act;
  • The business has a valid municipal business license. 

The rebate does not cover benefits, payroll taxes or deductions and is only applicable when the employee has used all other paid sick leave available to them. This benefit is not available to First Nation governments but may be available to First Nation businesses.

The Leave (COVID-19) Regulation provides for unpaid, job-protected leave of up to fourteen (14) days for an employee to follow a health protection measure or to care for a close relative subject to a health protection measure. An employee is only permitted to take this leave once and is not required to provide a medical certificate as otherwise necessary under subsection 59(3) of the Employment Standards Act. 

Please contact us if you have any questions regarding the new COVID leaves in your jurisdiction.

LAYOFFS

The impacts of COVID-19 may result in some organizations having to reorganize their workforce to accommodate employees who are self-isolating or quarantined, or to layoff employees due to a lack of work, supplies or labour. For the most part, the employer’s usual obligations in respect of notice or pay in lieu of notice for layoffs and dismissals continue. However, certain statutory exemptions may apply depending on applicable jurisdiction and circumstance.

Most jurisdictions have employment standards rules that establish how long a layoff can be before it is deemed a termination. Recent amendments to the Canada Labour Standards Regulations now temporarily extend time periods set out in the Regulations to give employers more time to recall employees who have been laid off. Similarly, amendments to the BC Employment Standards Act extend the temporary layoff period from 17 weeks to 24 weeks, expiring August 30, 2020.

Organizations who are considering layoffs or otherwise reorganizing their workforce as a result of the pandemic should seek legal advice specific to their circumstances and applicable jurisdiction.

 

EMPLOYER OBLIGATIONS DURING RE-OPENING

Provincial and territorial governments are slowly beginning to relax restrictions and re-open their economies. Employers must plan to ensure that they resume operations in compliance with all applicable orders and recommendations of public health officers as well as their statutory obligations.

Below are some general answers to commonly asked questions to assist employers with understanding how to fulfill their health and safety obligations during re-opening. However, many of the requirements are new, complex and have far-reaching implications for each of the different workplaces for which a First Nation or Indigenous organization may be responsible. Please contact us for legal advice about your obligations as an employer regarding re-opening and in regard to individual workplaces.

Q: When should I re-open my workplace?

A: Legal restrictions on which businesses may open may vary between jurisdictions. Businesses should confirm whether they may legally re-open in their jurisdiction. If re-opening is permitted, an employer should not commence operations until they are able to ensure a safe workplace that appropriately manages the hazards presented by COVID-19 and have complied with any statutory obligations they have in this regard.

Q: How Do I Assess COVID-19 hazards in the Workplace?

A:  Orders and recommendations of public health officers represent the minimum standards that employers must meet. Check the workplace safety organization for your relevant jurisdiction to determine requirements (see below). In British Columbia, WorksafeBC has published a guide for employers to assist with preventing exposure in the workplace.

Q: Do I need to enforce physical distancing in the Workplace?

A: The best known way to keep employees from contracting COVID-19 is to reduce physical contact between employees. Employers should implement policies that ensure physical distancing is enforced and maintained. If physical distancing is not possible due to the nature of the work, consider other measures, including staggered shifts, regular cleaning during the workday and providing personal protective equipment (see more below).

Q: In addition to physical distancing, how else should I prevent transmission of COVID-19 in the Workplace?

A: Employers should follow all recommendations and guidance of public health officials and:

  • promote proper hygiene in the workplace;
  • provide access to soap, water, and disinfectant;
  • place hand sanitizer dispensers around the workplace;
  • develop regularly scheduled enhanced cleaning and disinfecting of the workplace;
  • prevent symptomatic employees from attending the workplace; and
  • ensure that all employees are trained on COVID-19 related policies.

Q: Am I required to provide Personal Protective Equipment (PPE)?

A: Where it is impossible to implement physical distancing, or if the nature of the work puts employees at increased risk of exposure, employers should require employees to wear PPE. Employees must be trained how to properly use PPE. If an employer requires the use to PPE, the employer must supply such PPE.

Q: How do I handle symptomatic employees?

A: The employer should immediately separate the employee from the workplace. The employee should not be permitted to return to work until they are free of symptoms, have received medical clearance and have completed self-isolation as required by the public health officer. Contact tracing may be directed or conducted by public health authorities.

Q: Are Employees required to return to work when we reopen?

A: The obligations of the employment contract continue during a layoff. Employees who are recalled to work are obligated to return to work provided the employer is able to provide a safe working environment. Where possible and appropriate, employees should continue to work remotely.

Q: What human rights obligations apply?

A: All an employer’s usual human rights obligations with respect to discrimination apply. Employers should be careful to accommodate employees whose ability to return to work may be affected by a prohibited ground of discrimination, such as their family circumstances (for example, childcare obligations) or underlying health conditions.

Q: Can I ask Employees if they have any COVID-19 Symptoms?

A: Employers are permitted to collect health information from employees that is reasonable in the circumstances, but privacy laws continue to apply. Employers should be cautious about what they ask and to keep any information collected confidential. It is preferable to have a communicable illness policy in place to provide guidance on the use and collection of this information. We recommend seeking specific advice.

For further information on restrictions and guidelines for workplace safety please consult:

British Columbia

Alberta

 Saskatchewan

Manitoba

Ontario

 Quebec

 New Brunswick

 Nova Scotia

 Prince Edward Island

 Newfoundland and Labrador

Yukon

 Northwest Territories & Nunavut

SUPPORTS AVAILABLE FOR BUSINESSES

Federal, Provincial, and territorial governments are providing supports for business. If you have any questions about your eligibility, please contact us.

Federal Assistance for Indigenous Businesses

  • is providing $306.8 million in short-term, interest-free loans and non-repayable contributions for First Nations, Inuit and Métis businesses. Small and medium-sized Indigenous businesses that are current or former clients of an Aboriginal Financial Institution are eligible. Further details are available

Federal Aid for all Businesses

Canada’s COVID-19 Economic Response Plan includes a number of measures to support Canadian businesses during the COVID-19 pandemic, including:

Flexibility for Businesses and Local Governments in BC

The Government of BC has created a portal website for small-businesses where they can access information, resources, and announcements from industry partners.

This site contains details of all supports for business, including:

  • Access to credit;
  • Bill Relief for Fortis, BC Hydro and ICBC;
  • Payment Deferrals;
  • Financial Stimulus;
  • Support for Agriculture and Farmers;
  • Support for Child Care Services;
  • Support for the Forestry Industry;
  • Support of Property Owners; and
  • Funding to support internet access in rural and indigenous communities.

Businesses in BC with a payroll over $500,000 are now able to defer employer health tax payments until September 30, 2020.

The COVID-19 Relief Measure Act permits businesses to continue to hold annual, general and special meetings remotely for 90 days after the state of emergency ends.

Increases to the provincial carbon tax, the new registration requirements for e-commerce, and the implementation PST on sweetened carbonated drinks have been delayed and will be reviewed before September 30, 2020.

The school property tax for business and light- and major-industry property classes will be reduced by between 50 and 75% for the 2020 tax year, and the date that late payment penalties will apply for some business classes has been extended.

See these links for detailed information related to provincial tax obligations and local government capabilities:

https://www2.gov.bc.ca/gov/content/taxes/tax-changes/whats-new/sales-taxes

Yukon Supports

The Yukon government has established the Business Advisory Council to monitor and advise on the economic impacts of COVID-19.

Eligible Yukon businesses can apply for the Yukon Paid Sick Leave Rebate to provide paid sick leave to employees not currently eligible for paid sick leave.

The Temporary Support for Cancelled Events Funding Program provides funding for businesses and non-governmental organizations who are affected by the cancellation of a major event between March 7, 2020 and July 31, 2020 due to COVID-19.

The Yukon Business Relief Program will provide non-repayable grants to cover specific fixed costs (such as rent, insurance and utilities) incurred between March 23, 2020 and May 22, 2020 to a maximum of $30,000.00 per month. This program is not available to governments or their corporations. Applications will remain open until June 30, 2020.