We regularly receive inquiries from clients regarding their obligations to employees on leaves of absence or dealing with medical issues. We expect many employers to have more questions as the COVID-19 pandemic progresses and wish to provide a high-level summary of employment obligations in this situation for your information. Given the rapidly changing nature of the situation, we strongly encourage you to stay informed on the latest developments from our government and Public Health officials and to speak with us directly if you have a specific question or concern. This article should not serve as a substitute for legal advice.
Occupational Health and Safety
Employers are obligated under occupational health and safety legislation to take every reasonable precaution to protect workers. This would include protecting workers from diseases such as COVID-19. Therefore, if an employee is demonstrating symptoms or is in contact with someone diagnosed or has returned from a trip outside the country, and provided the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials, the employer should require the employee to stay away from work. Employees should not be permitted to return to work until they are free from the COVID-19 virus. Health authorities currently advise for any employees closely working with an infected employee to also be removed from the workplace for at least 14 days to prevent spread of the illness. Employees have a right to refuse work if they have reasonable grounds to believe their workplace is dangerous or unduly hazardous from a health and safety perspective, unless their position is such where a work refusal would endanger another’s life, health, or safety. The employer must respond to any refusals in accordance with occupational health and safety legislation and investigate the concerns. Employees cannot suffer any retaliation for properly exercising a health and safety right.
Employers should reasonably protect the confidentiality of employees as much as possible and should not collect, use, or disclose personal information without the employee’s consent and employers should ensure there is a reasonable basis for requiring the information.
Alternative Work Arrangements and Compensation
Given the current situation, it is likely that an employer requesting an employee to work from home would be seen as a reasonable measure to encourage social distancing. For any employee who can work remotely from home, they are entitled to pay as usual from their employers if they are can still perform the essential duties and responsibilities of the position. Monitoring employees remotely can be challenging, but a written policy can help address working hours, productivity, reporting, monitoring and expectations.
Whether an employer is obligated to compensate an employee who is not able to attend work and cannot work from home depends on the circumstances. We strongly recommend you contact us for specific guidance if you are unsure of your compensation obligations. Employers should not discipline or terminate an employee or otherwise discriminate against an employee due to any illness (including COVID-19), which is a protected ground under the B.C Human Rights Code.
Employers should also be cautious about purporting to unilaterally lay off employees or refusing them work. Although there may be cases where holding an employee out of service without pay is reasonable, there may be morale consequences to doing so. The employee may publicize not being paid for staying home and it may also discourage employees from properly assessing their own illness and taking appropriate preventative measures. Again, employers are encouraged to speak with us to discuss the specific situation in advance of making a decision regarding an employee.
Employers should consult their employment agreements and/or policies to determine their obligations to employees for leaves of absence. Employees who cannot attend work and cannot work remotely may be able to utilize sick leave benefits and/or other short-term benefit coverage. Employees can also utilize the leaves under the Employment Standards Act of British Columbia, including critical illness or injury leave to provide care or support for a critically ill family member, family responsibility leave, or compassionate care leave, although these leaves under the Act are unpaid unless stated otherwise in the employment contract or employer policies. The Canadian government has now made it easier for eligible Canadian employees to obtain EI sickness benefits. Some employers offer a “top up” to any EI premiums as part of their benefits package and should consult their own policy and employment contracts for details. The Canadian government also announced that it will be enacting further measures to support employees who are unable to work due to COVID-19. As this situation is rapidly changing, employers should keep informed on a daily basis about the latest support and resources that the government will be providing.
There are other sensible measures that employers should be taking during this time, including increased office cleaning, limiting face to face meetings, prohibiting travel, following quarantine protocol for any infected employees, and increasing hand sanitizer stations. In most cases, we encourage employers to err on the side of caution and try to communicate with employees as much as possible.
Many of our clients also have volunteers in their organizations, for which many of the principals noted in this bulletin would apply. Again, contact us for specific advice on your situation.
We strongly encourage employers to keep informed and updated on this situation as it is regularly changing. We also encourage employers to be as flexible and understanding as possible in this uncertain time, which may include more flexible hours and work arrangements with employees. Wherever possible, we encourage employers to try and come to an agreement with an employee up front on a reasonable and suitable alternative working arrangement.
This can be a stressful situation for employers and employees alike. Please contact us for specific guidance and advice about your situation and we would be happy to help you.