Common COVID-19 Questions for EmployersMar 18 2020
The pandemic is a rapidly evolving situation and therefore new information or restrictions are coming out from our governing authorities everyday. Below is some general information regarding the obligations of employers and answers to some common questions relating to COVID-19 and the workplace. The information was last updated on March 27, 2020.
Basic obligations as an Employer:
- You have a general legal obligation to ensure the health and safety of your workers, as well as to not discriminate against employees on protected grounds such as illness/disability and family status.
- It is a fundamental aspect of your employment relationship with your employee that they work and be compensated.
What do I do about an employee exhibiting COVID-19 symptoms?
If an employee is exhibiting symptoms (fever, cough), the Ministry has strongly urged people to self-isolate for 14 days. The BC Ministry of Health has developed an online self-assessment tool to assist individuals in determining whether further testing or intervention is required found here: https://covid19.thrive.health/
If an employee has mild symptoms and has had contact with someone who is diagnosed with COVID-19, the BC Centre for Disease Control says to contact one’s healthcare provider or the designated hotline at 1-888-COVID19 (1-888-268-4319). If an employee receives medical advice to self-isolate, then you can require that an employee use any available vacation or sick days, or go on short-term disability. Also, the employee may be eligible for sick-leave benefits through EI for up to 15 weeks. Please note the government is continually announcing changes to EI to broaden eligibility and coverage.
If an employee does not agree to self-isolate or obtain medical advice, and by attending work puts the health of others at risk, you are within your rights as an employer to require that the employee either work from home or take time off. It is possible that if the mandated time off is unpaid that this will be found to be a “constructive dismissal” and it could be treated as a termination of employment (explained further below).
Pursuant to the Employment Standards Act, if you are requiring that an employee take vacation then it must be in 1-week increments (i.e. 2 weeks for the 14-day recommended isolation period).
You are also within your rights to request that an employee seek advice from a medical professional prior to returning to work.
It is a breach of the BC Human Rights Code to discriminate against an employee on the grounds of illness or disability. Additionally, on March 23, 2020 the BC Government passed legislation retroactive to January 27, 2020 that allows employees who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may exposed others to risk to take an unpaid, job-protected leave for as long as the circumstance that requires them to be away from work applies.
An employer should not terminate an employee who has been required to self-isolate or who has been diagnosed with COVID-19 without additional legal advice.
What do I do about an employee who needs to stay home with children?
All classroom learning in BC for kindergarten to grade 12 is suspended indefinitely. Daycares remain open for the time being, however individual daycares are also closing down throughout our community. This may result in requests for accommodation to work from home, flexible hours or time off.
Pursuant to the BC Human Rights Code, an employer cannot discriminate against an employee on the grounds of family status. This has been interpreted to include caring for children or aging parents. An employer is required to accommodate requests for accommodation to the point of “undue hardship”.
What this means essentially is that if it is within your ability to grant a reasonable accommodation, you should. It may be that part of the accommodation includes the employee working reduced hours or being eligible for unpaid time off. Additionally, as noted above, on March 23, 2020 the BC Government passed legislation retroactive to January 27, 2020 that allows employees who need to care for their child or other dependent to take an unpaid, job-protected leave.
An employer should seek legal advice prior to terminating an employee who has requested an accommodation.
What do I ABOUT AN EMPLOYEE WHO IS AFRAID TO COME TO WORK?
Technically an employer is not required to accommodate an employee’s fear of illness, however there are many reasons an employee may be concerned about contracting COVID-19. For example, it could be that he or she has underlying health concerns or aging parents to care for in which case the previous section applies regarding accommodating to the point of undue hardship. At a time when health authorities are encouraging individuals to stay home if possible, allowing an employee to use vacation/sick days or go on an unpaid leave of absence would generally be considered reasonable accommodation.
The Record of Employment (ROE) would be completed with Block 16 (reason for issuing) as “N” for an unpaid absence.
Can I layoff employees temporarily?
Unless expressly provided for in a contract of employment or implied by well-known industry-wide practice (like logging where work cannot be performed year-round), laying off an employee for any period of time without their agreement is considered a termination of employment and triggers your obligation to pay notice or severance (explained later).
Where permitted, employers may temporarily layoff employees for up to 13 weeks in any period of 20 consecutive weeks. The 20-week period begins on the first day of the layoff. Any week in which an employee earns less than 50% of regular wages is considered to be a part of the layoff. If the layoff exceeds 13 weeks, it is deemed a termination of employment.
How do I complete the Record of Employment (ROE) for a temporary closure?
The employee needs to have gone through 7 days without work or pay before the ROE is issued otherwise there could be delays in processing. You have 5 days from the “interruption” to issue the ROE, meaning it must be issued between 7 and 12 days after the layoffs.
Block 16 of the ROE (reason for issuing) should be “A” which is generally used for “shortage of work (layoff)”, however also applies to temporary and permanent shutdown of operations.
The date for return in Block 14 would likely be “unknown” (unless you have a specific date for re-opening). It is important if you are intending that it be temporary that you do not mark off “not returning” as this would indicate it is a permanent termination
Is my company eligible to implement “work-sharing”?
Work-Sharing is a program through EI to avoid layoffs during temporary decreases in business. It provides EI benefits to eligible employees who reduce their normal working hours and share available work while their employer recovers. Normally the maximum period it applies for is 38 weeks, however this has just been extended to 76 weeks.
All information regarding eligibility and the application process can be found in the Government of Canada’s guide here: https://www.canada.ca/en/employment-social-development/services/work-sharing/guide-employee.html#h3.1
What assistance is available through Employment Insurance?
There is a phone line dedicated to inquiries regarding EI claims related to COVID-19: 1-833-381-2725. You can encourage employees to call this number if they need to apply for EI benefits either because they need to self-isolate (medical) or due to a layoff (regular). Employees or employers also can use this line if looking for financial support through the EI work-sharing program.
Is my company eligible for a “wage subsidy”?
The government announced on March 18, 2020 an economic response plan that includes a number of measures impacting businesses, from assisting with access to credit to introducing a wage subsidy. The temporary wage subsidy is for a period of three months for employers who are eligible for the “small business deduction”, as well as non-profit organizations and charities.
On March 27, 2020, it was announced that the subsidy was increasing from 10% of the remuneration paid during the period up to 75% of wages. The government advised more details would be forthcoming.
Answers to frequently asked questions can be found here: https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html. For more information, you should contact your accountant.
What does it mean if my actions are deemed a “termination of employment”?
Unless an employee is terminated “for cause” (see below), he or she is either entitled to advance written notice that the job is ending, or payment in lieu of that notice (commonly referred to as “severance”).
If an employee is deemed to be terminated, regardless of whether it is because the employer’s business is closing temporarily, or there is simply not enough work for the employee to do, he or she is entitled to notice or severance. If you are decreasing the size of your workforce on a permanent basis the ROE would be filled out as above with Block 16 with code “A” and then you would indicate that the employee is not returning in Block 14.
There are mandatory minimum notice periods set out in the Employment Standards Act based on years of service to a maximum of 8 weeks; that is, an employee is entitled to either receive advance notice that the job is ending in 8 weeks or receive wages in lieu of that notice. Unless your employees have enforceable employment contracts that limit them to the mandatory minimums, they could be entitled to significantly more notice by going through court. This type of lawsuit is commonly referred to as a “wrongful dismissal claim” and is further explained in our blog post here: https://rdmlawyers.com/insights/employment-law/wrongful-dismissal-reasonable-notice-explained/.
“Just cause” for termination is a high standard to reach. It is typically associated with serious misconduct (like theft), however it can also involve poor performance over an extended period of time. You can read more about what constitutes “cause” at our blog post here: https://rdmlawyers.com/insights/employment-law/terminating-for-just-cause-possible-costs-for-failure-to-meet-the-standard/.
General tips for terminating employees can be found on our blog here: https://rdmlawyers.com/insights/employment-law/best-practices-for-terminating-employees/.
As we are in an unprecedented situation, at least in modern history, it is impossible to know for certain how the courts will react to the mass layoffs we will be seeing. The information above is provided as general guidance only and updated to March 23, 2020. The BC and federal governments are making announcements daily that may impact the information contained in this document.
If you have additional questions or need assistance in preparation for layoffs, please contact our office at 604.853.0774 and we can set up a phone consultation to further assist you.