COVID-19 - Small Business Employers are often frozen into inaction

ConnectsUs HR™ is in the business of providing concrete and executable HR resources and templates for small business customers. However, during these unprecedented times of COVID-19, we’ve often found ourselves just as frozen as our clients.

A typical COVID-19 HR scenario goes something like this

A typical topic, issue, question or challenge experienced by small business employers during the pandemic looks something like this:

Q: Our business has been decimated and we have no choice but to lay off some or all of our employees. What do we do?

A:  Do Y, except if you’re in this province or industry – then do this. But don’t forget that you cant just do Y if you don’t have it explicitly outlined in an employment contract. If you don’t, you’ll need to do X before you can proceed to Y. But remember that you can’t really do X because of this and that. If you do this, you’re taking a risk, and if you do that, you’re screwed because the truth is that our current laws simply don’t fit this new reality.  

Every answer inevitably ends in “Contact an employment lawyer” that many small businesses may not be able to find or afford at this time when the legal bill could arguably save the employment of 1 or 2 of your employees for a period of a few months.  

The answers to most COVID-19 questions salient to small business and their workforce, try to navigate privacy laws that cross pollinate and often contradict Safety, ESA and Human Rights statutes. For example: 

• Exactly how are you supposed to keep Sally’s contraction of the virus confidential and anonymous when you need to protect your employees and determine who Sally’s been in contact with when workplace safety laws require you to keep everyone safe?
• In the case where an employer isolates an employee by ordering them to work from home upon returning home from travel, exactly how is an employer supposed to avoid a temporary alteration of an employee’s normal day-to-day conditions without these measures being viewed as constructive dismissal or discrimination?

We’re all reading reams of advice woven into layers and layers of complex information that doesn’t spit out an actionable answer and more often than not results in confusion, fear, frustration and inaction.

It seems as though the answers and narratives to employers’ current questions simply discuss the scary risks of making a decision. But listing the risks is not actionable for small business. They require step by step procedures that look like, step 1: Do this. Step 2: Do this. Ideally, without incurring thousands of dollars in legal fees.

The Risks

The risks associated with the workforce decisions you make at this time are unknown because the current employment landscape is unprecedented and complex.

Small businesses face the risk of constructive dismissal/human rights claims, or safety violations. The bad news is that no one really knows how things are going to go down once the dust settles and the pandemic is no longer a threat.

The good news is that we believe that it’s unlikely that tribunals and courts will punish employers for well-intentioned decision they make to create a solution that makes sense for what is needed now for their business and their workforce.

We spoke with Robert Smithson, whose employment law articles are some of the best and no-nonsense we’ve seen on the subject of COVID-19. His wise words go something like this:

While ignoring or not understanding the law is not an excuse, these times are unprecedented. We’re applying old law to a whole new world.

The reality may be that COVID-19 is the prototype for a frustration of employment scenario. That may make a lot of the feared liabilities relating to interruption/cessation of employment go away.  (While there will always be that handful of employees who will bring forward complaints when things normalize, it seems highly unlikely that the courts won’t apply a reasonableness filter before awarding damages.)

Picture yourself in front of a judge or tribunal in 6 months or a year from now.  Will you be able to defend your actions in relation to your employees, knowing that you did what you had to do in this unprecedented situation? 

• Were your intentions good? Did you execute in good faith?

• Were there any other alternatives at the time you took action?

• Were you effectively painted into a corner by the COVID-19 situation?

• Did you do the only thing you could to move forward in the moment?

At ConnectsUs, we ultimately have faith that courts and tribunals will not punish small businesses for decisions they make now that may not follow the letter of the law that currently may fall short in addressing the complex scenarios created by COVID-19.  We believe that the courts are going to be careful about applying harsh punishments to employers who executed in good faith.

Options for moving forward

Small businesses have 3 choices in the following preferred order.

1. Contact an Employment Lawyer to help you navigate your current employment landscape and issues. 
   • BC: Robert Smithson, Smithson Employment Law Corporation
   • Alberta: Thomas Duke, Miller Thomson 
   • Ontario: Stuart Rudner, Rudner Law 
2. Create the solution you need and move forward by making an informed decision and using the ConnectsUs HR resources and templates available to you. 
3. Go rogue. Make uninformed decisions that only take into account the financial well-being of your business, without considering the current laws that govern your workforce during the pandemic.

We don’t recommend Option #3, but we certainly support both Option 1 and 2.

Ariane Laird is CEO & Founder of ConnectsUs HR, a company that provides tools & resources to quickly set up a Human Resources department.  
You can contact her directly from the Inquiry Type drop down menu.

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