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.
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:
- the employee agrees to the layoff,
- the layoff is normal and expected for the industry, or
- 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.
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.
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.
Article written by: Kelvin Scheuer, Lawyer, Beacon Law Centre