The COVID-19 epidemic has created uncertainty for many employers as they continue to manage their business operations during these unprecedented times. At HSJ Lawyers LLP., we understand the effects that COVID-19 has on our clients and our community.
To assist our clients as they transition their workplaces through this challenging time, we have prepared some general information that may be of assistance to you and your workplace.
As you navigate the financial and employment challenges caused by COVID-19, we wish to remind you that each workplace’s particular circumstances are unique and that the best decision for your workplace will depend on the changing advisories from government, public health agencies, the nature of the workplace and its financial health. We encourage you to reach out to us if you have any questions or if you wish to discuss in further detail any of the following information.
What if an employee is unable to work because of infection, quarantine, or the need to care for an ill family member or a child due to school/daycare closures?
• The employer has the right to send employees home if they are unfit for work, such as if they are showing symptoms of COVID-19.
• A recent change to the Employment Standards Act gives employees up to three days of unpaid, job-protected leave each year for situations where the employee cannot work due to injury or illness. If you do provide paid sick days, you cannot later deduct the sick time or pay from the employee’s vacation time, statutory holiday pay or wages.
• If an employee goes home sick partway through the day, either at the insistence of the employer or at the insistence of the employee, you are only required to pay the greater of either two hours wages or the employee’s actual time worked that day.
• Leaves of absence are available to employees under the Employment Standards Act. A leave of absence is unpaid, but the employee’s job is protected while they are on the leave.
• At the end of the leave, you must contact the employee about returning to work and if you cannot provide them with the same (or equivalent) job upon their return, then you may be responsible for paying the employee compensation for length of service.
What if an Employee is refusing to work on account of fears or concerns regarding Covid-19
• An employer cannot discriminate against an employee and must accommodate an employee up to “undue hardship”. This can be particularly important for employees that are deemed vulnerable to the Covid-19 virus, and when there are legitimate Covid-19 related concerns.
• Accommodating may include implementing work from home options, shorter shifts, or limited public interaction, where those options are feasible.
• Employers are obligated to provide a safe work environment and an employee can refuse to work in an unsafe work environment. Employees that refuses to work in a safe environment may still be subject to reprimand if refusal to work does not meet the criteria as set out by WorkSafe BC and Workers’ Compensation Act
• The employer should keep up to date with all WorkSafe BC requirements and provisions for Occupational Health and Safety and the health ministries.
What if your business is experiencing a shortage or total stoppage of work?
• An Employer may utilize a “Temporary Lay-off” for a period of no more than 13 weeks in a 20 week period, provided that the employee agrees to the temporary lay-off, there is an industry standard or practice of layoff or seasonal element to the industry as set out in the Employment Standards Act (“Industry Standard”), or the employment contract or collective agreement provides the employer with the right to “Temporary Lay-off.”
• If the employer unilaterally imposes a “Temporary Lay-off” or if the employee’s “Temporary Lay-off” extends beyond 13 weeks in a 20 week period or extends beyond the period of “right of recall” as outlined in an employment contract or collective agreement, the employee will likely be deemed to be terminated and liability for termination will arise.
• An employer may alter the Employee’s jobs to meet the needs of the business, such as changing hours, expanding or limiting function, however a substantial change to the employee’s working conditions may constitute a constructive dismissal. Written employment contracts often include terms outlining the Employer right to do so.
• An employer may reduce the employee’s weekly wages by cutting hours or reducing pay, however an employee’s employment is deemed to be terminated when their weekly wages are reduced by 50% or more.
• An employee may however agree to changes in their job function, hours of work and pay. It is important to document any agreed changes to the employee’s terms of employment such as a temporary lay-off or reduction of their weekly hours, wages or job function, in writing.
• An Employer may leverage accrued vacation time owing to the employee. Employees have a statutory right to vacation time after their first year of employment. However, the employer has the right to choose when employees take vacation, including cancelling vacation if there is a shortage of workers or requiring employees to take vacation if there is not enough work.
What benefits are available to assist in Employers and Employees affected by Covid-19?
• The Federal Government will cover up to 75% of a salary on the first $58,700, which could mean payments of up to $847 a week. This is available when there is a decrease in revenues of at least 15%, as of April 8, 2020. The Government encourages employers to top up remaining 25% of salaries but it is not required. This program will be retroactive to March 15, 2020.
• The federal government has announced enhancements to the Work Sharing Program, which may assist employers seeking to retain their workforce. The Work Sharing Program provides income support to employees eligible for EI benefits, who work a temporarily reduced work week while their employer recovers. The proposed changes would extend the length of agreements from 36 weeks to 76 weeks, waive the mandatory waiting period between agreements and ease recovery plan requirements. Employers must submit an application to Service Canada 30 days in advance to take advantage of this program.
• WorkSafe BC is postponing the reporting and payment deadlines for Q1 2020 to June 30, 2020 for employers who report and pay on a quarterly basis. Employers who report and pay on an annual basis may defer until March 2021.
• The Federal government is providing a taxable benefit of $2,000 a month for up to four months to eligible workers who have lost their income due to COVID-19 under the Canada Emergency Response Benefit (CERB)
• Laid off employees may apply for regular EI benefits. An Emergency Support Benefit has been announced that would provide support to workers who face unemployment but are not eligible for EI, effective in early April of 2020.
• Employees may claim up to 15 weeks of Employment Insurance (EI) sickness benefits if they are unable to work due to COVID-19. The federal government has announced that they are waiving the one week waiting period and the requirement to provide a medical certificate, which will allow employees to take advantage of these benefits without delay. These changes are effective as of March 15, 2020.
• Employees who have lost their job may also claim a $1000 BC Emergency Benefit from the Provincial Government.
Should you have any questions regarding the affects of Covid-19 on your workplace or if you wish to discuss any other issues that affect your business as an employer, please contact us.
Kimberly A. Pavao, Partner
HSJ Lawyers LLP