COVID-19: Key Considerations, Resources, and Relief in an Uncertain Time

By Preston I.A.D. Parsons and Kai Ying Chieh

On March 11, 2020, the World Health Organization officially designated COVID-19-often referred to as coronavirus-a pandemic. In the last few days, the measures taken by Canadian governments and businesses to respond have been unprecedented and have included the sudden closure of public facilities and private businesses across the country as well as a surge in businesses requesting, if not directing, that their employees work from home where set up to do so. All of these measures have been taken to stave off the severe ramifications for the healthcare system should COVID-19 spread too quickly.

In the last few days, we have received numerous inquiries from employers regarding their obligations during this time and best practices to ensure a safe workplace not only for customers but for staff.

The situation is rapidly evolving as COVID-19 is diagnosed, governments react, and employers adjust their practices to reflect the best course of action in the circumstances. As a result, we emphasize that the information that follows is general information that must be tailored to the individual circumstances of each business and in some instances, to individual employees. As the situation develops, so will the appropriate steps to be taken. We strongly encourage our clients with questions to reach out in a timely manner for a confidential discussion about next steps in these uncertain times.

Key Resources

There is an extensive amount of information currently being circulated with respect to COVID-19 and its spread in British Columbia. To ensure your organization is in receipt of credible information on this pandemic, we encourage all employer clients to monitor this rapidly-changing situation with reference to reliable official news sources, including the following:

• For updates from the BC Ministry of Health: https://news.gov.bc.ca/ministries/health
• For updates from the Government of Canada: https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
• For specific information on the virus itself, the BC Centre for Disease Control: http://www.bccdc.ca/health-info/diseases-conditions/covid-19

Managing the Workplace in Compliance with Human Rights Law and Occupational Health and Safety Requirements

It is important to consider the human rights implications of the COVID-19 outbreak. At a base level, employee requests for time off due to illness should be treated the same by the employer in this situation as they would in other situations during the cold and flu season, and with the duty to accommodate engaged accordingly.

In this situation, the employer’s duty to accommodate – and what the point of undue hardship is – will be affected by not only the employer’s typical occupational health and safety obligations, but also government restrictions imposed upon employers. Employers are required to maintain a safe workplace, and the government’s directions on periods of self-isolation should be heeded in this regard. Given the heightened social and governmental response emphasizing the importance of acting together to slow the spread of COVID-19, employers will have more latitude to keep their workplaces safe. Due diligence steps should include permitting work from home arrangements where possible, re-arranging physical office space to physically distance employees from each other who are required to attend the office, stepping up cleaning and sanitation efforts, and advising all employees who are feeling ill in any way to refrain from entering the workplace.

The difficult point for employers will be to determine when an employee is in fact ill and needs to be sent home. To that end, employers should keep abreast of the true signs and symptoms of COVID-19 found at the links above and understand the differences between for instance, the symptoms of the common cold, versus the seasonal flu, versus COVID-19. Care must be taken to avoid discrimination on the basis of a perceived disability, and sending home an employee who presents with symptoms of the common cold and not COVID-19, may engage risks of discrimination on the basis of perceived COVID-19 infection. It is likely that infection with COVID-19 would be found to constitute a disability.

If in doubt as to whether human rights or occupational health and safety issues are engaged by your present actions (or inaction) as an employer in response to this public health crisis, please reach out to one of our lawyers.

Temporary Layoff

An increasing number of retail and other businesses have made the news by announcing a voluntary shutdown of brick and mortar operations to avoid the risk of transmission of COVID-19. Furthermore, government interventions have come to bare in shutting down private operations well. For many businesses – in particular small businesses, non-profits, and businesses in industries where the margins are narrow – a temporary closure where a certain amount of overhead must continue to be paid may not be feasible and could spell disaster for the organization’s long-term viability.

We have received a number of inquiries relating to the possibility of closing operations and issuing notice of temporary layoff to employees. In this section, we will outline the law regarding temporary layoff and the potential liability of issuing such a notice.

BC Employment Standards Act

Previously, there was some uncertainty in the law as to whether employers had the right to temporarily lay off employees under the BC Employment Standards Act (the “Act“). However, more recent cases including Hooge v. Gillwood Remanufacturing Inc., 2014 BCSC 11, confirmed that the Act only anticipates unilateral, temporary layoff of employees if it is provided for by the terms of the employment agreement. In the absence of a prior term permitting temporary layoffs, or the agreement of the employees, an employee is entitled to individual notice of termination or pay in lieu of notice under section 63 of the Act. An employer who considers issuing notice of temporary layoff in the absence of a layoff provision should take into account the risk of claims for termination pay.

Where temporary layoff is permitted, note that the Act limits the duration of the temporary layoff. Under the Act, employers may temporarily lay off employees for up to 13 weeks in a consecutive 20-week period. Once the 13 weeks of layoff are exceeded, even where the contract gives the employer the right of layoff, the layoff will be deemed a termination of employment and termination pay will be owed to employees.

At this time there is little certainty as to what the situation will look like 13 weeks down the road given the ever-developing responses to COVID-19. Employers should keep in mind the potentially significant liability under the Act should they be unable to recall employees at that time.

Potential liability may be further compounded by the operation of section 64 of the Act, which requires that employers provide additional notice of group termination where the employment of more than 50 employees is terminated within the span of 2 months at a single location. We strongly suggest that employers seek legal advice if considering the temporary layoff of more than 50 employees as a result of COVID-19.

Common Law

In addition to employers’ liability under the BC Employment Standards Act, we note that at common law, a unilateral temporary layoff may be construed as a termination of employment and the employee thus entitled to reasonable notice of the termination of their employment (i.e. a wrongful dismissal claim). The amount of damages will vary based on factors including the employee’s age, length of service, nature of employment and availability of comparable employment, but may be as much as 24 months’ pay for older, long service employees. While employees claiming common law damages would have an obligation to mitigate their damages, employers must tread carefully to avoid the risk of significant common law claims resulting from a temporary layoff.

Employees will also need to think carefully about whether to make such claims. Given the current economic climate, claiming constructive dismissal and attempting to find new employment may be a worse option than waiting out a temporary layoff with an employer in good faith.

Keep Updated

As noted, this is general information that may be altered by further government intervention, including the passage of new legislation, in the near term.

As of March 17, 2020, the BC Government has announced this matter is now a public health emergency under the Public Health Act, and that amendments are coming to BC’s Employment Standards Act to ensure that employees cannot lose their jobs as a result of having to self-isolate. Alberta and Ontario have declared states of emergency and both are moving rapidly to amend their employment standards legislation to address workforce concerns arising from this.

On March 18, 2020, the Federal Government announced significant financial aid worth $82 billion is coming to Canadians and businesses. This includes a wide swatch of measures, including tax filing deadlines pushed back, a six-month interest free deferral on student loan payments, increasing the Canada Child Benefit payments, funds to address immediate needs in First Nations communities, and more. Of particular note for employees and contractors:

• Employment Insurance benefits have become easier to access with less waiting and red tape.
• A new Emergency Care Benefit and Emergency Support Benefit are to be established to help the self-employed and those required to be quarantined without paid leave to obtain access to emergency funds.

Full details on the Federal Government’s COVID-19 Economic Response Plan can be found here: https://www.canada.ca/en/department-finance/economic-response-plan.html.

We are on standby to help

Our office is taking measures to ensure the health and safety of our staff while ensuring that we remain as responsive as ever to all of our clients through this trying time. Please do not hesitate to reach out by phone or e-mail for advice and assistance regarding the specifics of your workplace and employment situations.