March 22, 2020
By Daniel Sorensen and Lawrence Smith, Partners
The ongoing COVID-19 health crisis has led to staff shortages, reduced hours, and business closures across British Columbia; leaving many employers unsure of their legal obligations to employees. We have compiled this list of questions most frequently asked by our clients to help British Columbian businesses navigate employment laws during these trying times. Be sure to check back for updates as we continue to monitor the situation.
As the Fraser Valley’s foremost workplace law firm for both employers and employees we are here to help you navigate the complex and novel legal issues arising from the ongoing COVID-19 pandemic. Please contact our offices with any questions you may have concerning the rights and obligations of employees and employers under the current circumstances. We are working remotely as suggested by the Provincial social-distancing guidelines and not conducting in person consults, but we are able to meet by telephone or video conferencing, or questions can be submitted by email.
If an employer needs to layoff employees due to business slowdown, or is ordered to close, what obligations does it have for employee wages and benefits?
An employer is entitled to layoff its employees due to work shortage or in the case of COVID-19, an ordered closure. The employer need only issue an ROE to the employees laid off and they would be able to make a claim to Employment Insurance (EI). For employees that are not eligible for EI, the Canadian Government recently announced an “Emergency Support Benefit” that will be administered by the Canada Revenue Agency and deliver up to $5.0 billion in support for workers facing unemployment.
Consider though that under the British Columbia Employment Standards Act, a layoff of more than 13 weeks in a 20-week period is considered a termination, which would require the employer to pay the employee an amount specified in section 63 (as much as 8 weeks of pay).
Typically, a temporary layoff is only permitted if a written employment contract specifically contemplates such layoffs. Otherwise, the employer may be liable for a termination (under common law). If the reduction in the annual earnings of the employee is significant due to the layoff, the employee may be able to treat the layoff as a constructive dismissal and sue for severance (as much as 24 months of pay at common law depending on factors including age, length of service, and character of employment).
It is worthwhile for businesses experiencing economic slowdown to consider utilizing the work sharing program through Employment Insurance. This program provides EI benefits to workers who agree to reduce their normal working hours. The Canadian government recently extended eligibility of such agreements from 38 weeks to 76 weeks in response to the COVID-19 crisis.
Is an employer legally required to pay an employee who is quarantined, self-isolating, or sick with COVID-19 while they are away from work?
An employer does not have to pay an employee while they are away from work due to COVID-19 illness, quarantine, or self-isolation. However, there may be circumstances where the employer may be obligated to continue paying the employee where they have unilaterally imposed the absence from the workplace.
We encourage employers to allow their employees to use any sick time or vacation time available during a COVID-19 related work absence. Some employers have voluntarily instituted sick leave benefits specifically for COVID-19 work absences, however this is entirely at the discretion of the employer.
Where possible, we recommend allowing employees to work from home during COVID-19 self-isolation in order to avoid a disruption in the employee’s income. It is also advisable for British Columbian businesses to prepare options for their employees to work from home as the possibility of government ordered business closures becomes more likely.
An employee away from work due to COVID-19 illness or quarantine may claim Employment Insurance (EI) sickness benefits. On March 18, 2020 the Prime Minister announced new economic measures to support Canadian workers and businesses. As part of these measures the one-week waiting period before individuals in imposed quarantine can receive EI sickness benefits and the requirement to provide a medical certificate have been waived.
For those employees away from work due to COVID-19 illness or quarantine, who do not qualify for EI sickness benefits, the Canadian government has introduced a new Emergency Care Benefit providing up to $900.00 bi-weekly, for up to 15 weeks.
For more information on benefits available to workers during COVID-19 illness or quarantine, visit https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#Income_Support_for
Can an employer require an employee to take time off work due to COVID-19 concerns?
Yes, and in fact an Employer is obligated to do so pursuant to occupational health and safety laws in British Columbia.
If an employee has returned from out of country, is exhibiting symptoms, or has COVID-19, an employer can require the employee to stay away from work. An employer is not required to pay an employee while they are away from work (see FAQ 2 above for more information on benefits available to employees).
Pursuant to occupational health and safety laws, employers have a duty to provide a safe work environment, free of health hazards including infectious disease. Requiring an at-risk employee to stay away from work is consistent with the obligation to provide a safe work environment. According to WorkSafeBC’s book “Controlling Exposure: Protecting Workers from Infectious Disease”, employers must do the following to protect workers:
- Identify infectious diseases that are, or may be, in the workplace.
- Develop and implement an exposure control plan, when required (in workplaces such as hospitals, nursing homes, law enforcement, daycares and schools).
- Inform workers about how they may be exposed to infectious diseases in the workplace.
- Educate, train, and supervise workers on safe work procedures, including hand washing and the proper use of personal protective equipment (PPE).
- Offer vaccinations as recommended in the BC Centre for Disease Control’s Communicable Disease Control Manual, without cost to workers who are at risk of occupational exposure.
- Purchase safety-engineered medical devices, where appropriate.
- Tell workers to seek medical attention, as required.
See WorkSafeBC’s “Controlling Exposure: Protecting Workers from Infectious Disease” book at https://www.worksafebc.com/en/resources/health-safety/books-guides/controlling-exposure-protecting-workers-from-infectious-disease?lang=en
If an employee requests time off work to self-isolate, can an employer refuse?
In light of the severity of the COVID-19 pandemic, an employer should not refuse an employee’s request for time off work to self-isolate, even if the employer has some concerns about the sincerity of the request. In these unprecedented times, employers and employees need to be supportive and understanding toward one another.
From a legal perspective, an employee in British Columbia has the right to refuse unsafe work pursuant to occupational health and safety laws. If the employee reasonably believes that their work creates an undue hazard that they will contract COVID-19, it is advisable to allow time off work or where possible allow the employee to work remotely.
The British Columbia Human Rights Code, provides that it is not lawful for an employer to discriminate against an employee on the basis of various protected grounds, including disability. It would be discriminatory under the Human Rights Code for an employer to treat an employee who has COVID-19, or is perceived to be at risk of having COVID-19 negatively (for example, by terminating their employment). Similarly, if an employee has COVID-19, is symptomatic, or has recently returned from travel abroad, the employer will have a duty to accommodate them if they request time off work to self-isolate. An employer’s duty to accommodate the employee to the point of undue hardship takes into consideration factors such as cost to the employer and the health and safety of other employees. Ultimately, a refusal to grant time off work to an employee that wishes to self-isolate over COVID-19 concerns (in accordance with public health guidance) would likely be a failure to meet the duty to accommodate.
See here a link to British Columbia’s online COVID-19 self-assessment tool: https://covid19.thrive.health/
Can an employer request proof of illness?
The medical system is struggling to keep up with increased demand due to COVID-19. Public Health Officials have specifically directed that employers should not request proof or a doctor’s note to substantiate COVID-19 illness. Therefore, in these circumstances an employee’s request for time off work to self-isolate should be granted without proof of illness.
Can an employer refuse an employee’s request for time off work to care for a family member who is ill or to care for children?
We advise against refusing an employee’s request for time off to care for a family member who is ill or to care for children. It is our opinion that the need to care for ill family members and children will engage a protected ground known as “family status” under the British Columbia Human Rights Code. As such, an employee’s request for time off in these circumstances would engage the employer’s duty to accommodate. Such a request should be granted unless it creates undue hardship on the employer. (see FAQ 4 above for more information on the employer’s duty to accommodate).
Further, under the British Columbia Employment Standards Act, employees are permitted up to five days of unpaid leave during each employment year to meet responsibilities related to the care, health, or education of a child, or the care or health of any other immediate family member.
Finally, the Prime Minister announced measures to financially assist Canadian’s who cannot work due to family care or childcare responsibilities. The new Emergency Care Benefit provides up to $900.00 bi-weekly, for up to 15 weeks for all workers taking care of a family member who is sick with COVID-19, and parents with children who require care or supervision due to school closures.
Given employment legislation in British Columbia, and the Canadian Government’s introduction of COVID-19 specific financial aid to individuals who need to care for ill family members and children, it would be unreasonable and likely discriminatory for an employer to refuse an employee’s request for time off.
For more information on benefits available to British Columbians during the COVID-19 pandemic, visit https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#Income_Support_for
We anticipate further changes and modifications to Federal and Provincial government supports and programs. Continue to monitor this blog and we will update it regularly.
SORENSEN SMITH LLP, Legal Counsel
Daniel Sorensen Lawrence Smith
Partner Partner
March 22, 2020
Emails:
Website: sorensensmith.com
Phone: 604.705.0022
Fax: 604.705.0033
Address: A-45515 Knight Road, Chilliwack BC V2R 5L2