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Written by Thomas G. Frohlinger

Returning to Work in Manitoba

Manitoba is beginning the process of reopening its economy, services are being restored, and businesses are resuming operations. As a result, workplaces are becoming active, raising key issues regarding the rights, and the obligations of employers and employees during the COVID-19 pandemic. In support of this transitional period, we have developed the following summary outlining key issues and their current legal implications for employers and employees:

Determining Whether Employee has been Laid-Off or Terminated due to COVID-19:

Employees who have been laid off because of COVID-19 are not required to be paid beyond the hours they have worked. In addition, during the declared state of emergency which began on March 1, 2020 until the termination of this state of emergency, layoffs longer than 8 weeks in a 16-week period are not deemed terminations. None of the time an employee is laid off during this period will count towards the 8 weeks which are normally the maximum allowable time laid-off before the layoff is deemed a termination. Any time an employee is laid off outside of the state of emergency counts as it normally does towards the 8 weeks.

Further information may be found on the Province of Manitoba’s website, at the following link: https://manitoba.ca/asset_library/en/coronavirus/business_amendments_termination.pdf

Generally Laid-Off Employees Must Return to Work When Asked to do so by their Employer:

The Workplace Safety and Health Act (Manitoba) provides employees with reasonable protection in the event an employee refuse to return to work due to a legitimate safety concern. As a result of COVID-19 employers will have to be more flexible when it comes to accommodating their employees. However, generally an employee is required to return to work if asked to do so by their employer, and if their employer has met all the safety guidelines as set out by the Province of Manitoba. If an employee refuses to return to work, they may be deemed to have resigned from their employment position.

Certain exceptions exist, such as for an employee who is the primary caregiver for a child who does not have alternate childcare available.

Employees have a Duty to Report Covid-19 Infection, Exposure, and Potential Exposure when Returning to Work:

An employee does not have to advise their employer if they previously had COVID-19 but since been cleared of the virus, however they are required to advise their employer if they:

  1. Have COVID-19;
  2. Have been exposed to COVD-19; and/or
  3. Believe that they may have been exposed to COVID-19.

Employer cannot Unilaterally Modify an Employee’s Working Hours or Compensation upon Returning to Work:

Generally, an employer cannot unilaterally modify an employee’s working hours or compensation. Doing so may result in a constructive dismissal.

A constructive dismissal may occur when an employer materially alters the terms of an employment contract without the permission of the employee, or if not otherwise allowed for in the employment contract. In the event an employer does change an employee’s wage or working hours it may be deemed that the employer has terminated that employee’s employment, and that employee may be entitled to full severance pay. To best determine if you have been constructively dismissed, or to avoid constructively dismissing an employee contact someone in from our Employment Law department.

Employer’s Obligations to Comply with COVID-19 Reopening Requirements:

To operate a business in the Province of Manitoba, an employer must comply with all regulations governing its operation, including those regarding COVID-19. As of the writing of this article (May 13, 2020), the Province of Manitoba is currently in the “Restoring Services (Phase One)” part of its reopening plan. This phase maintains public health measures and current travel restrictions, which include mandatory self-isolation upon one’s return to Manitoba and limits on travel, however it loosens many other restrictions. The Province’s plan is available at the following link: https://www.gov.mb.ca/covid19/restoring/approach.html

Pursuant to the COVID-19 Prevention Orders authorized under The Public Health Act (Manitoba), certain services and businesses are permitted to resume and reopen subject to certain requirements:

  • Non-urgent surgery and diagnostic procedures may resume;
  • Retail businesses may reopen;
  • Restaurants may reopen their patio/walk-up services;
  • Therapeutic or health care businesses may resume non-urgent or emergent care;
  • Hairstylists and barbers may reopen;
  • Museums, galleries, and libraries may reopen;
  • Outdoor recreation facilities and golf courses may reopen;
  • Day camps may operate; and
  • Parks, campgrounds, yurts, and vacation cabins may reopen.

Specific retail businesses permitted to reopen include:

  • Clothing and shoe stores;
  • Jewellers;
  • Tailors;
  • Flower shops;
  • Lodges and outfitters;
  • Sporting good/adventure stores;
  • Vaping supply shops;
  • Boats dealers;
  • ATV and snowmobile dealers;
  • Gift, book, and stationary stores;
  • Toy stores;
  • Music, electronic, and entertainment stores;
  • Pawn shops;
  • Pet groomers; and
  • Similar businesses.

To reopen, a permitted retail business must follow all requirements, which include:

  • Limiting occupancy to 50% of normal business levels, or with one person per ten (10) square meters, whichever is lower, in order to allow staff and customers to maintain a physical distance of at least two (2) meters, except for brief exchanges;
  • Employees must use the self-screening tool before coming into work, available at: https://sahredhealthmb.ca/covid19/screening-tool/;
  • Employees must stay home when ill;
  • Customers must not be denied entry if they are ill with COVID-19 symptoms;
  • Employees must be provided with information about physical distancing;
  • Businesses must post external signs indicating COVID-19 physical distancing protocols, along with floor markings where service is provided or lines form;
  • Entry into businesses, including lines, must be regulated to prevent congestion;
  • Businesses must maintain a single point of entry;
  • No more than ten (10) people may gather in common areas;
  • Congregations of people must be actively discouraged;
  • Hand sanitizer must be available at entrances and exits of public and staff use;
  • Washrooms must have frequent sanitization and a regime for business sanitization must be in place; and
  • Cashless or no-contact payment must be used to the greatest extent possible.

The specific requirements for each type of service and business permitted to resume and reopen are stated in the COVID-19 Prevention Orders, which are available at the following link:
https://manitoba.ca/asset_library/en/proactive/2020_2021/orders_soe_05052020.pdf

Compliance with Government Requirements:

The Workers Compensation Board of Manitoba regulates the safety of workplaces in the Province of Manitoba. Concerns regarding potentially unsafe work or a potentially unsafe workplace can be addressed or by e-mail to wcb@wcb.mb.ca

For businesses operating inside the City of Winnipeg, concerns specifically regarding potential non-compliance with COVID-19 requirements can be addressed to the City of Winnipeg by calling 311 or sending an e-mail to 311@winnipeg.ca

For businesses operating outside the City of Winnipeg, concerns specifically regarding potential non-compliance with COVID-19 requirements can be addressed to the Manitoba Government Inquiry department by calling (204) 945-3744 or sending an e-mail to mgi@gov.mb.ca

Penalties for non-compliance with these requirements range from fines of up to $50,000.00 for an individual, $500,000.00 for a corporation, and/or six months to a year imprisonment.

For more information relating to the impact COVID-19 is having on your business, or your employment, please contact someone from our team. We are here to help you navigate and succeed through these uncertain times.