COVID-19 and the Workplace

March 22nd, 2020

COVID-19 has disrupted all aspects of Canadian life, including the workplace. We at BTM Lawyers LLP are keeping up to date on all government announcements and regulatory changes that are impacting the rights and obligations of employers and employees and their ability to continue to work. Employers must be prepared to act and adapt to this fluid situation.

The following summary provides answers to a few of the common questions that employers are currently grappling with. This is general information only, and subject to change as the situation evolves and regulatory changes are made. We recommend that all employers obtain legal advice to understand their rights and obligations, and to be aware of what government programs may become available to assist them during these unprecedented times.

Can I prevent an employee from coming into work due to a risk of exposure to COVID-19?
Yes. If an employer reasonably determines that there is a risk that an employee has contracted or been exposed to COVID-19, they may require that the employee not come to work until either the 14-day quarantine period mandated by the Public Health Authority has passed, or test results have been obtained indicating the employee has not contracted COVID-19. In fact, the law requires an employer to do so. Employees are entitled to a safe workplace, and employers are obligated under Occupational Health and Safety legislation to provide a safe workplace. If an employer permits an infected employee to come to work and another employee contracts the virus, the employer may be liable for the harm caused to the newly infected employee.

Can an employee refuse to come to work due to fears of contracting COVID-19?
As above, an employee has a right to a safe workplace and an employer has a statutory duty to provide the same. If there is a clear danger to the health and safety of employees caused by COVID-19 in the workplace, an employee may refuse to work. If an employee refuses to come to work due to fears of contracting the virus, the employer must respond first by conducting an investigation and then taking steps to remove any danger identified. During the investigation, the employee is entitled to their wages and benefits.

Am I required to pay employees who are not at work due to COVID-19 sickness or quarantine?
An employer is not obligated to pay employees who are ill with COVID-19 apart from paid sick leave as provided for in the employment contract. The employee may be eligible for short-term disability benefits and employment.

If an employee is required to be in quarantine, and therefore unable to attend work, the employee is able to go on an unpaid job-protected leave of absence from work. In light of government restrictions on non-essential travel, an employer may refuse to pay an employee during quarantine if the employee has ignored recommendations by the Health Authority and voluntarily travelled abroad.

BC human rights legislation prohibits adverse treatment of an employee due to illness. Whether an employee has contracted COVID-19 or is in quarantine, an employer cannot terminate an employee or change the terms of their employment, including those with respect to job duties or compensation.

In addition, employers should note that the Employment Standards Act affords eligible employees unpaid, job protected leave when an employee is absent from work due to an illness. Please see our most recent post on this issue. The employer may not terminate the employee’s employment while they are on a job protected leave of absence.

Am I required to allow my employees to work from home?
The answer to this question depends on the situation. Firstly, in order to do their part to help prevent further spread of COVID-19, employers should permit employees to work from home whenever possible.

In general, employers are not required to allow employees to work from home. However, there are circumstances in which an employer will be obligated to make remote work an option for employees.

Employers must keep in mind their obligations under Occupational Health and Safety legislation to provide a safe workplace. The presence of COVID-19 in the workplace will trigger an employer’s responsibility to take steps to ensure that the workplace is safe for workers, including making remote work an option.

BC human rights legislation prohibits discrimination on the basis of disability and obligates employers to accommodate an employee’s disability to the point of undue hardship. It is likely that contraction of COVID-19 will be considered a disability under human rights legislation. If an employee has contracted the virus, the employer may be required to accommodate the employee by enabling the employee to work remotely if possible.

When an employee cannot perform their duties due to illness, the employee is entitled to paid sick leave and benefits as above.

Further, widespread closures of schools and childcare facilities create an enormous challenge for employees with children and their employers. Human rights legislation prohibits adverse treatment on the basis of family status. While an employer is entitled to expect an employee to work without the interruption of caring for their children, this may not be possible should childcare options become unavailable due to government restrictions aimed at preventing spread of the virus. In such circumstances, the employer would be required to accommodate an employee by permitting them to work from home in order to care for children to the point of undue hardship.

Navigating obligations under human rights legislation is a complicated and it is recommended that employers seek legal advice before refusing to permit employees to work from home during this crisis.

Can employees be laid off?
An employer is not entitled to lay off workers that are unable to work due to COVID-19 related absences, and the BC Government has announced their intention to amend the Employment Standards Act to prevent COVID-19 related layoffs. We will be able to provide employers with more details on these changes once the amendments and further details are announced by the BC Government.

Currently, under the Employment Standards Act, an employer is not afforded a general right to temporarily lay off employees. An employee may only be temporarily laid off where the employment contract permits it, the employer is in an industry where lay offs are common or the employee consents to the layoff. Currently, the Employment Standards Act provides for a period of temporary lay off of up to 13 weeks during a 20-week period. After 13 weeks, termination pay must be provided as the lay off is considered permanent.

A permanent lay off is the same as termination without just cause, and accordingly, an employee’s right to severance pay is triggered.

The impact of the COVID-19 pandemic on an employer’s business may be such that the employment contract is frustrated, meaning it is incapable of being performed due to an unforeseen event rendering the contract fundamentally different in character from what the parties intended. In these circumstances, an employee is likely not entitled to severance pay.

The law with respect to lay offs is an evolving area and the BC Government has announced its intention to amend the Employment Standards Act and its provisions that allow for temporary layoffs and layoffs specifically related to COVID-19. We will be able to provide guidance and advice to employers once the BC Government releases further details regarding these amendments. We recommend that all employers seek legal advice before taking steps to lay off or terminate their employees.

Get Advice
The COVID-19 pandemic creates an incredibly challenging legal environment for businesses that is teeming with risk and potential pitfalls. It is important that employers obtain sound and practical legal advice to navigate their rights and obligations.

We can be reached at 604-937-1166 or you can get in touch with our employment lawyer Catherine Coakley directly by email at [email protected] or on her direct line at 604-917-0048.

Posted in:
Employment

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