Wildfires in Alberta put spotlight on crisis management

Speaking to Aaron Marchadour in mid-May, he talked about the “horrendous” conditions in Calgary a few days earlier because of wildfires burning across Alberta.

“I could barely see outside of my office at all. And it was orange sky, very apocalyptic.”

However, for those who must work closer to the flames, it’s even worse, says the associate lawyer at MLT Aikins, “so I try not to complain too much about the smoke in Calgary.”

News of the wildfires inundating Alberta – potentially setting records – and the accompanying smoke drifting into neighbour states and provinces has many people concerned.

And for many employers and workers in the region, memories of the devastating fires that swept through Fort McMurray in 2016, or the massive floods that washed through southern and central Alberta in 2013, are still fresh.

But hopefully lessons were learned, as these can be applied once again with the 2023 fires that could continue, on and off, during a hot, dry summer. Because employers have a variety of considerations and responsibilities when faced with such a crisis, ranging from health and safety requirements to payroll and staffing issues and employment law factors.

Employee safety top priority

The first concern should always be for the safety of the people that work for your business, says Stephen Torscher, partner at Carbert Waite in Calgary.

“If the fire is encroaching, if there's smoke or like we saw with the floods here in 2013, you’ve got to make sure everybody is safe first, before you are really worried about whether the business can stay open or what have you.”

Every employer has a pretty broad duty to ensure the health and safety of workers, and to identify any kind of hazards on the worksite and to control those hazards, says Marchadour, such as air quality risks and the possibility of evacuation.

“Under OHS legislation, there are specific requirements around emergency preparedness, and emergency response. And those are typically triggered when you have a potential evacuation requirement, or where there is a rescue requirement, potentially on the worksite.

“Those plans have to address varies based on your specific worksite and your hazards.”

In the higher-risk area, you're going to want to be considering personal protective equipment (PPE) and other methods of adapting the work being carried out to meet general health and safety obligations, such as people working inside, scheduling shorter shifts and longer breaks, and less physical activity.

“All of those measures are types of controls that can control hazards related to air quality and related to smoke.”

Even if employers put in place plans because of the Fort McMurray fires, “now's a good time to review those… thinking, ‘Is this still applicable, is still helpful? Will this still meet our needs?’”

Employers should also keep in mind human rights considerations.

“If you have employees that have medical conditions where they have respiratory issues or asthma or something like that… make sure you're meeting your duty to accommodate, seek out information about what exactly they're restricted from doing and what that looks like, and see if there's any sort of accommodation you can take to address that.”

Having a plan and communicating

From there, communicating with the employees is another key aspect of the response to a disaster like this “so everybody can stay informed, and be aware of what's happening at all times and make sure everybody's accounted for,” says Torscher.

In Calgary in 2013, a lot of folks were caught off guard by the flooding, he says.

“You don't really expect it, that an entire downtown is going to be shut down by a natural disaster. But once it happens, you realize the value of having these [emergency response] plans in place and ready to go in advance of when you need them.”

The same can be said for what happened during the start of the COVID 19 pandemic, says Torscher.

“There are some tools and some lessons that we have from the pandemic that we can apply to any kind of situation like this, where there's some major disruption to your business, and you're having to look at different ways to get the job done.”

You should have specific considerations for where workers are and what they're doing, and how workers will be notified if a worksite is closed or an evacuation order takes effect, says Marchadour.

And you want to make sure you have multiple communication channels in place, such as two-way radio, because remote work sites might have limited internet access or limited cell reception, he says.

“A lot of [workers at remote sites] are getting bused to a worksite at the beginning of the day and expect to get picked up at the end. So do you have some sort of mass transportation that you can be transporting these workers to a safe location on short notice in the event of an emergency.”

It’s also advisable to confirm the contact info for your workforce should an evacuation order be given, says Marchadour, and going over the procedures so people know about things like transportation and safe locations.

Under OHS legislation, there are also requirements around having workers trained to lead the evacuation response, such as fire marshalls.

“So who are your designated workers that need to know those evacuation procedures inside out?” he says.

“You don't want people panicking in the moment and not knowing where they're going or, or how they're getting transported there, that sort of thing. So [it’s about] considering all those things, and making sure you as an organization, as an HR person, as a health and safety officer, are very familiar with the procedures, and making sure your workers and your designated evacuation personnel are also very well aware.”

How to handle work refusals

Of course, there may be some employees who consider the situation too risky for them to work, even if the employer says it’s OK, and refuse to work.

“Those kinds of complaints need to be treated seriously. And they need to be treated on a case-by-case basis,” says Torscher.

“There's obviously provisions under the Occupational Health and Safety Act that allow employees to refuse to do work when they deem it unsafe to do so. And so there's still some procedures that need to be followed there, and some investigations and followup that needs to be done.”

Different employees might have different perceptions of the risks that are involved, he says.

“You might have an employee who has breathing problems or asthma or something like that, and going back to work when the air quality is really poor might have really negative consequences on their health.”

If an employee doesn’t want to show up for work where there isn't a dangerous or unsafe condition present, that's not a valid reason to not show up for work, says Marchadour.

“Employers need to be aware, obviously, that employees have a right to refuse unsafe work or dangerous work. So that's really what you're evaluating. But… if you as an organization have reasonably concluded it is safe to attend work, then employees should be attending work.”

Abandonment of work is a tricky and complex topic, he says.

“If it’s just one or two shifts being missed and there's somewhat of a valid reason, I would very much caution against jumping the gun and saying that employee’s abandoned their job. You would probably just want to be reiterating the message ‘You're still expected to attend work until we determine there's an unsafe condition or dangerous condition.’”

If you can allow workers to work from home, that's something to consider so they can keep earning income, says Marchadour.

But “make sure that if you don't want that to be permanent or a permanent arrangement, that you're explicitly communicating that so you're saying, ‘This is not a permanent arrangement, it's only temporary, until we assess that the hazard of a wildfire evacuation is no longer present, at which point you'll be expected to return to the workplace.’”

How is payroll handled during a crisis?

In Alberta, there are no job-protected leaves for situations like this, says Torscher.

“Where there are policies available in the workplace that allow you to take time off or to use personal days or sick leave, pretty much universally all the clients that I dealt with in the past, during the flood, for example, and at the start of the pandemic, were all very compassionate and very flexible about using those kinds of benefits to allow employees to continue to receive compensation of some sort, while there were some serious and unpredictable interruptions in the workplace.”

Otherwise, when it comes to payments when a workplace is temporarily closed because of wildfires, you have to go back to the basic first principles of employment law: one party does the work and the other party pays the money, he says.

“Generally speaking, if one party is not providing the work or one party is not able to work, then there's not often an obligation there to pay the salary.”

But that can be complicated by other factors, says Torscher.

“If the employee’s available to work and the business isn't there to offer hours or to offer that work, then that can be a challenge as well, because you're looking at a possibility that he might be going down the path towards something like a constructive dismissal kind of situation.

“There's some legal risk in saying that a person can't come into the office when they're otherwise ready, willing and able to do so.”

If you're just saying, “Don't come to work and you're not going to get paid,” depending on how long that goes on for, you don't want to have people have a significant reduction in earnings for no valid reason, “which can trigger more of a constructive dismissal risk,” says Marchadour.

Employers could look at other paid leave options that you have as an organization, such as personal days, or vacation days.

“And then other things — consider that some commercial insurance will cover wage replacement during periods of emergency.”

Temporary layoffs and employee terminations

If the crisis continues indefinitely, at a certain point, the employer will have to make a decision about staffing and the possibility of temporary layoffs.

If you're going to consider temporary layoffs, “make sure you look at your company policies and whether or not they expressly speak to that as a possibility, you would likely want to contact legal counsel before making that determination,” says Marchadour.

It’s really important to follow the rules as they're laid out in the Employment Standards Code, and to ensure that you're in the best position to support a temporary layoff, says Torscher.

“If you miss those recall dates and you're outside that time, you could be at risk of having inadvertently terminated some of those employees that that you actually did intend on bringing back.”

On the more extreme end, an employer might be looking at a frustration of contract or force majeure situation where the employment has become impossible to perform “because of some intervening act that neither party really accounted for or predicted,” he says.

“But those are all really fact-specific and dependent on the particular circumstances of every case.”

The courts are very careful to protect employees from being exploited by the employer who tends to have the upper hand in a lot of these situations, says Torscher.

“They'll do what they can to try to protect the employees’ interests. So they're not going to be quick to find that there's a frustration situation, force majeure or anything like that happening — you'll have to be very thorough in your assessment of the business's ability to continue in one form or another, following the wildfires or whatever emergency situation that you're looking at — before you'll be able to proceed with any confidence that a frustration situation is available to you.”

Beyond that, if you need to reduce numbers, without cause terminations might be on the table as well, says Torscher.

“If you have those temporary layoffs in place and employees aren't recalled in the proper timeframe, you're in that position anyway. So the regular termination, that's an option to consider as well.”