COVID-19 Employment Law Update

By Kelvin Scheuer

The Covid-19 pandemic has severely impacted employers and employees alike. This article explores the rights and obligations of both employers and employees in these circumstances.

Termination during self isolation or illness

The BC Government has introduced new Covid-19 leave provisions, for employees who:

  • are unable to come to work because they are in quarantine or self-isolation in accordance with public health guidelines,
  • are directed by their employer not to work due to concern about exposure to others,
  • are outside of BC and unable to return to work due to travel restrictions,
  • are required to take time off to care for a child or dependent adult for reasons related to Covid-19, including a school, daycare, or similar facility closure

Employers may not terminate the employment of workers who are unable to come to work for these reasons, and will be required to give the employee the same job, or an equivalent, once they return to work.

The new Covid-19 leave provisions are retroactive to January 27, 2020, are in addition to the 3 days of unpaid sick leave already allowed in BC, and are unpaid except as per any paid sick leave provisions in the worker’s employment agreement.

Other relevant forms of leave

An employee is entitled to 5 days of unpaid family responsibility leave, if they are required to care for a child or immediate family member. As well, an employee is entitled to 27 weeks of unpaid leave to care for a terminally ill family member, and up to 36 weeks of unpaid critical illness or injury leave (up to 16 weeks if the family member is older than 19 years). Employment can not be terminated while an employee is on leave.

Requiring employees to stay home

Employers have a right to require employees to stay home if they are sick, and employees have a duty to report if they are unwell.

Temporary layoffs

A temporary layoff occurs when an employee is given less or no work, with a plan that they will return to their regular work schedule at some point in the future. A reduction in hours worked is considered a layoff as soon as the employee earns 50 per cent or less of their weekly wages, at their regular rate.

An employee in British Columbia can be laid off only if:

  1. the employee agrees to the layoff,
  2. the layoff is normal and expected for the industry, or
  3. the layoff is permitted by an employment contract that was in place prior to the lay off.

It is up to the employer to prove that the temporary layoff falls into one of the allowable categories. If they can not, the layoff will likely be considered a termination of employment.

If the temporary layoff is permitted, the maximum length of the layoff permitted by the Employment Standards Act is 24 weeks expiring on August 30, 2020.

Termination

If a layoff is considered a termination, the notice provisions of the Employment Standards Act will apply, and the employer will be required to provide the employee with written notice of termination, and/or payment in lieu of notice, which is at minimum based on the requirements of sections 63 and 64 of the Act.

Employment impossible to perform

It may be impossible for an employee to perform the work required of them due to unforeseen circumstances. Section 65(1)(d) of the Employment Standards Act states that sections of the Act (63 and 64) that set the minimum notice of termination required do not apply “to an employee employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance”.

This section, however, only applies to the minimum amount of notice required pursuant to the Employment Standards Act. There is a separate common law requirement to compensate an employee on termination which is separate from that required under the Act. It would be difficult, but may be possible, for an employer to claim that an employment agreement has been frustrated in common law as well, thereby possibly avoiding the common law compensation provisions.

Government Assistance

The Government of Canada has introduced several programs to assist employers and employees. As these programs are frequently updated, the government’s website, or your local chamber of commerce or business association, is the best source for more information.

If you require guidance with employment issues, we are here to help.

Testimonials

I just wanted to extend my thanks for your absolutely first class service. When we were purchasing our home, as you know, we had many obstacles to overcome and actually thought in the last two days that our deal might not go through. It was a very stressful time in our lives and I want you to know that we’ll always appreciate your calm, caring, professional manner and how you made us feel at ease and that it would all work out because we had you representing us.

You and the rest of your team are awesome, and this is why I will continue to refer you to anyone I know who needs legal representation. As a realtor being able to refer my clients to someone who I know without a doubt will provide them with the best legal advice and service adds to my confidence in terms of the overall service I am providing.

You have, in essence become a key element of my business team and I look forward to building on what is already a successful business relationship.”

M.D.

Lianne, thank you so much for your excellent work on our conveyance. Your extra work helped save us thousands of dollars.

Dear Mr. Elgersma, I want to thank you and your team for all your help during my recent sale in Victoria. My lawyer here in Ontario was very impressed by your fee and said it was a very good deal in his experience. Thank you very much.

C.G.

I recently had the experience of selling my condo. As I am not in the habit of frequently buying and selling my home I find the whole process a bit unnerving. To add to my unfamiliarity with home transactions, I was due to be out of the country on the completion date of my sale. Needless to say this was somewhat worrisome to me.

I hired Del to handle the legal transaction of my sale. What a great decision this turned out to be. Del and I got together a week prior to my trip and completed the necessary paperwork. There are a lot of papers to sign when selling a home and Del took the time to explain each document to me and answered all the questions I had. He then assured me that he had everything he needed in order to handle the transaction in my absence.

Del had explained everything so clearly to me and made me feel so at ease about the process that I felt completely comfortable leaving my legal interests in his hands while I was off vacationing. This made quite an impression on me as I have never felt comfortable leaving my fate in the hands of others, especially the likes of lawyers!

Previously I would have worried about everything going smoothly on the actual day of my home sale but to my delight and surprise on the completion date of this sale I laid in my hammock and drank champagne in the sunshine celebrating with complete confidence that the transaction would be handled just fine. I returned home only to have my suspicions confirmed . . .yes, in my absence, money had been quietly deposited to my account!

Thank you Del for allowing me to let go of the stress and worry around this large, important and infrequent type of event in my life.

A.W.

Over the past year Lianne Macdonald has provided excellent legal advice to my real estate clients. I am always impressed with the quality of her services, as well as the care shown by Lianne and her staff. Lianne is always available if I have any questions or concerns. Her sound advice and legal counsel has greatly helped me in difficult and unusual situations. Lianne Macdonald is a proactive lawyer, an honest and caring person and a trusted friend. Without hesitation, I would recommend Lianne’s services to others, and will continue to use her service where they pertain.

C.W.

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