The recent worldwide COVID-19 pandemic is affecting businesses everywhere. Whether it is mandatory or recommended closures, limited hours, skeleton staffing, or temporary or indefinite layoffs – everyone is, or will be, impacted by the COVID-19 outbreak. The various rights and obligations of employers and employees alike remain in full force and are not deferred from simply being in a time of crisis. Ensure that you are protected if your employment is affected or if you are an employer who needs to make immediate changes to your staffing needs. The lawyers at Doak Shirreff have extensive experience in employment law and can meet with you remotely as required to assist you navigate during this rapidly developing situation.
In order to ensure proper implementation of a COVID-19 plan, employers should be aware, at a minimum of the following legislative requirements that are not on hold simply because of the current global crisis:
1. Occupational Health and Safety Regulation under the Workers Compensation Act
In British Columbia, the Occupational Heath and Safety requirements are a regulation under the Workers Compensation Act (“WCA”), primarily administered and enforced by WorkSafeBC. Generally, the Occupational Health and Safety Regulation requires that “all work must be carried out without undue risk of injury or occupational disease to any person” and employers are required to ensure the health and safety of its workers. The Occupational Health and Safety Regulation applies to all employers, workers and other persons working in or contributing to the production of any industry without Part 3 of the WCA.
Based on this, if your particular industry creates a risk to your employees with exposure to COVID-19, then reasonable steps should be undertaken to ensure that the employee’s risks are mitigated as much as possible. Employees (not all employees) are entitled to refuse to work in unsafe conditions under the legislation, so accordingly, forcing employees to risk personal health due to exposure to COVID-19 may warrant sanctions to the employer under the Occupational Health and Safety Regulations and WCA through WorkSafeBC investigations and complaints. If your industry would potentially risk employee health, it is advisable to follow industry requirements for warranted exposure, allow higher-risk employees to take a leave of absence or work from home, if possible, and implement a documented series of safeguards to ensure that the workplace is as safe as possible from this threat.
Certain employees are not entitled to refuse to work for health and safety grounds, if the dangerous work is an inherent part of their employment, or if their refusal to work would result in a health and safety issue to others (this would include police, fire, ambulance, and long term care health providers, etc.)
2. Workers Compensation Act
Employee who have been exposed to and contract COVID-19 as part of their employment circumstances could be entitled to compensation from WorkSafeBC for a workplace injury. While the full effects of COVID-19 are still unknown, it appears that relatively healthy individuals will experience flu like symptoms and respiratory symptoms and experience a full recovery, whereas elderly and young individuals, particularly those with compromised immune systems or chronic respiratory issues may face more serious symptoms leading to death. If the employee is exposed to COVID-19 at work, they may be entitled to income replacement benefits, medical treatment and if fatal, significant monetary entitlements. WorkSafeBC is mandated to address each case on a case-by-case basis and will continue to do so as more employment related COVID-19 cases materialize.
3. Employment Standards Act
Employees are afforded a number of protected leaves under the Employment Standards Act (“ESA”), except, interestingly enough, in the event of personal medical issues. Oddly, the ESA is completely silent on whether an employee is entitled to safeguards with regard to their own employment if they fall ill from COVID-19 or any other ailment. Conversely, employees are provided various leave protections, including if they need to take time off to care for a sick family member or in other specific situations such as: maternity leave, parental leave, family responsibility leave, compassionate care leave or critical illness or injury leave, etc. During covered leaves of absence, the employer is not entitled to terminate the employee’s employment or change a condition of their employment without the employee’s consent during the leave. Additionally, the employee is entitled to return to their original position upon returning from the leave period and all employment conditions are deemed continuous during the leave period (i.e. calculation of vacation time, etc.)
If an employee needs to take leave that is not protected by the ESA, it is suggested that subject to the employer’s abilities, to continue wage and benefits as long as is practical, in this period of unsettlement and global pandemic. If the continuation of wages and benefits is not a viable option, the employee is entitled to receive a Record of Employment for the period of leave, even if unknown duration, so they can apply for Employment Insurance benefits either for disability or sickness or period of unemployment. It will be safe to expect that due to this crisis, the federal and provincial governments will implement changes to the reporting and likely, duration of benefit entitlements going forward.
4. Mandatory or Recommended Self-Quarantine
If an employee is subjected to mandatory or recommended self-quarantine, the period of such quarantine is currently recommended at two weeks. Such incidents of self-quarantine could arise from recent travel, exposure to COVID-19, particular health risks, or for exhibiting symptoms. Regardless of the basis of the need for the self-quarantine, employers should do their best to ensure that there is no disruption to the employee’s wages and benefits as is practical. If the employer is unable to create a work-from-home environment for the employee (once medically able to work, despite being self quarantined), then the employee should be provided a Record of Employment for a temporary leave and disruption of income to enable them to apply for Employment Insurance benefits until they are able to return to work. While leaves of this nature are not protected under the ESA, the anticipated period of the quarantine should not be basis of termination, unless absolutely necessary. Employers should also be cognizant that if the employee was exposed to COVID-19 at work, then other legislative safeguards may protect their employment, including WCA, so although there may be a disruption in work and wages paid to the employee directly from the employer, such benefits would be provided for the interim period by WorkSafeBC.
5. Human Rights Code
The Human Rights Code protects employees (and others) from discrimination on the basis of disability and family status, among other protected grounds. COVID-19 will undoubtedly be treated like a disability and a disease and will be a protected ground from discrimination under the Human Rights Code, although there are no test cases to date. As such, employers cannot discriminate (or treat employees differently) simply because they have contracted COVID-19, have been exposed, require self-quarantine, or are perceived to be a higher-risk employee to contracting or getting seriously ill from the virus.
As an employer you cannot normally ask an employee for a diagnosis but rather only a prognosis as it may affect the employee’s ability to work. However, in the current COVID-19 crisis, it is practical for an employer to request employee disclosure to reduce the risk of transmission or exposure to others. All such medical information disclosure should be kept in strict confidentiality as would be the case with any medical information request of employees. Requests of employees to disclose recent travel, exposure risk, etc. may also be just in the current climate, but employers should be cognizant that this is an area fraught with risk, even in this time of crisis, so it is always advisable to contact an employment lawyer for advice if you have any questions or concerns.
Like any area of employment law, there is a great deal of risk that is associated with missteps. The obligations and requirements of employers to treat employees with respect and within the requirements of the law is not negated simply due to the current pandemic. In some respects the legislation is already designed to provide safeguards to employees in time of crisis, but the COVID-19 pandemic has created the need en masse. Employers attempting to circumvent their legal requirements will undoubtedly face significant consequences from civil claims, WorkSafeBC complaints, Human Rights Code complaints and Employment Standards Branch complaints, so it is wise to seek out professional advice before acting.
The employment lawyers at Doak Shirreff Lawyers LLP are here to assist and can even do so remotely as needed during this time of crisis. Please feel free to reach out to us at [email protected] or call 250-763-4323, or through our toll-free number at 1-800-661-4959 .