News

The unprecedented circumstances around the COVID-19 pandemic have many employers looking for answers to complex questions in a hurry. As a service to our clients, here are some of the questions we have been asked most often in recent days. If you need further advice, please contact our Employment & Human Rights Lawyers.

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, I 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.

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 should be eligible for any sick leave benefits that your company provides, and they 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 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 ceasing to pay such an employee could be grounds for a claim of constructive dismissal / termination pay.

Is Employment Insurance (EI) available to employees who are away from work due to COVID-19?

Yes – EI benefits should be available to employees affected by COVID-19.  In particular, employees should be eligible for EI benefits (without going through a one-week waiting period) if:

1)         they are unable to work for a medical reason (which now includes being subject to quarantine or self-isolation);

2)         have experienced a decrease in regular weekly earnings of more than 40% for one week; and

3)         have accumulated 600 insured hours of work in the 52 weeks before the start of the claim.

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; and

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