BC Workplace Blog

UPDATED Information as of March 25: FAQs about COVID-19 for Employers

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As of March 17, 2020, the BC Government has announced a public health emergency under the Public Health Act, and on March 23rd, 2020, the BC Government enacted amendments to the BC Employment Standards Act specifically directed to granting “job protected” leaves for BC employees impacted by COVID-19.

We continue to receive calls and questions from employers arising from the COVID-19 pandemic and are posting these updated FAQs as a service to our clients and the community. If you need further advice, please contact our Employment & Human Rights Lawyers by phone or email.

Can you “lay-off” employees?

The BC Employment Standards Act allows employers to temporarily “lay-off” employees for up to 13 weeks in a 20-week period. Please note however, that unless your Employment Agreement allows for a “temporary lay-off”, imposing a lay-off could result in termination pay or severance claims. In the current circumstances, if you are contemplating a lay-off, we would recommend that you discuss this with your employee(s) and advise them that your intention is to recall the employee(s) to work as soon as possible, and that in the meantime you will make arrangements for them to use up any accrued, sick-days, continue their benefits and assist them with applying for EI benefits.

COVID-19 Protected Leaves of Absence

The BC Employment Standards Act already provides a number of “protected” unpaid leaves of absence, including family responsibility leave, compassionate care leave, bereavement leave, family caregiver leave, and critical illness or injury leave. In addition, on March 23rd, the BC Government passed the following amendments (retroactive  to January 27, 2020) to grant job protected leave specifically for COVID-19:

• An employee can take an immediately unpaid “job-protected leave” leave if they are unable to work for reasons relating to COVID-19. “Job protected” means the employee can return to their job without discipline at the end of the leave – and they cannot be terminated from their position for taking the leave;
• Employees can take the leave if they are unable to work for reasons relating to COVID-19. This includes:
  • Employees diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse;
  • Employees who are in quarantine or self-isolation and are acting in accordance with an order of the Provincial Health Officer, an order made under the Quarantine Act (Canada), guidelines from the BC Centre for Disease Control or guidelines from the Public Health Agency of Canada;
  • Employees whose employer has directed them not to work due to concern about their exposure to others;
  • Employees who need to provide care to their children (including a dependent adult who is their child or former foster child) for a reason related to COVID-19, including a school, daycare or similar facility closure; and
  • Employees who are outside of BC and unable to return to work due to travel or border restrictions.
• There is no time limit on a COVID-19 leave. As long as the employee is unable to work for one of the reasons set out above, they will be eligible for this leave.
• While an employee is on a COVID-19 leave their employment is considered “continuous”. This means that, while you do not have to pay the employee, the employer must:
  • continue the employee’s benefits (and make the employer’s premium cost payment, provided that the employee wants to continue the benefits and is prepared to pay their employee share of the premiums);
  • continue to calculate annual vacation, termination entitlements, pension, benefits or length of service the same as if they normally would.

Do you have to continue paying employees who are away?

The answer depends on the reason the employee is away from work:

1)         If the employee is away from their usual place of work (i.e. your office, job site, etc.) but still doing work from home, then the employee should continue to be paid their wages and receive their benefits.

2)         If an employee is sick and staying home, then the employee is eligible for the unpaid COVID-19 leave (outlined above) as well as any sick leave benefits that your company provides. The employee may also be eligible for EI benefits. Once they have exhausted their sick leave benefits, an employer in BC is generally not required to continue paying an employee’s wages or salary if they are unable to work due to being away sick.

3)         If an employee is away from work (and not working remotely) because they are required to quarantine or self-isolate themselves as directed by government or health officials, then they will be eligible for the unpaid COVID-19 leave (outlined above). You are likely not required to continue paying the employee while away, but you may again allow the employee to access your sick days, accrued vacation days (and possibly short term disability benefits). Again, as noted above, the employee may also be able to apply for and receive EI benefits.

4)         If an employee is directed to stay away from work by their employer (i.e. because you are concerned that they may have been in contact with a person that has COVID-19) but they are neither sick, nor required to self-isolate/quarantine themselves as a result of a government or health official directive, then they will be eligible for the unpaid COVID-19 leave (outlined above). Note that ceasing to pay such an employee could however be grounds for a claim of constructive dismissal/termination pay.

Can Employers tell an Employee not to Come in to Work?

While the standards governing when a person must self-isolate are continuing to evolve, employers have an obligation to keep the workplace safe. Employers should, therefore, direct employees to stay home if government or health authorities have mandated self-isolation. If an employee is: sick with COVID-19; has travelled and is currently required to self-isolate; or has been in contact with an person who has tested positive for COVID-19, then employers should be directing the person to stay home.

Can Employees Refuse to Come to Work?

Employees in any of the above situations are able to advise their employer that they cannot come to work. In addition, WorkSafe BC Occupational Health and Safety guidelines give employees the right to refuse to come to work if they believe this would present an “undue hazard“. Whether an “undue hazard” exists in a workplace must be assessed on a case by case basis.

Is WCB a Source of Compensation for Employees that Cannot Come to Work?

WorkSafe BC/WCB policy states that it will only compensate employees for work-related injuries or illnesses; therefore, for employees who contract COVID-19 at work, compensation may be available. As with any work-related injury or illness, while employees make the claim for compensation, employers should remember that they have an obligation to report the event to WCB.

What other Benefits (including Employment Insurance (EI)) are available to employees who are away from work due to COVID-19?

EI benefits will be available for many employees affected by COVID-19. In particular, the Federal Government announced on March 18, 2020 the following changes to the EI benefits and other related measures to assist employers and employees impacted by COVID-19:

For employees without paid sick leave who are sick, quarantined or forced to stay home to care for children EI is:

• waiving the one-week waiting period for employees in quarantine that claim EI sickness benefits;
• waiving the requirement to provide a medical certificate to access EI sickness benefits;

In addition, an Emergency Care Benefit program has been introduced to provide up to $900 bi-weekly, for up to 15 weeks. This benefit will be administered through the Canada Revenue Agency (CRA) and provides income support to workers (including self-employed) who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits. This will include workers taking care of a family member who are sick with COVID-19, parents with children who require care due to school closures and are unable to earn employment income, irrespective of whether they qualify for EI or not. Application for the Emergency Care Benefit will be available in April 2020, and requires Canadians to attest that they meet the eligibility requirements.

In addition employers may also want to look into:

1)         EI’s “work-share” program. This program allows employers to avoid lay-offs due to a reduction in business activity that is beyond the control of the employer. Affected employees must agree to work a reduced schedule and share available work over a specified period of time. On March 18, 2020 the Federal Government announced that the work-share program will be extended to 76 weeks, easing eligibility requirements, and streamlining the application process;

2)         the possibility of providing a “wage top-up” to supplement the employee’s EI benefits through a Supplementary Unemployment Benefit Plan (SUBP).

RBS’s Employment Lawyers will continue to closely monitor and communicate the evolving legislation associated with COVID-19. If you need further advice, please contact our Employment & Human Rights Lawyers by phone or email.