COVID-19 Update: Legislative Changes, OH&S, and Privacy Implications

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

Legislative Changes in British Columbia

On Monday, March 23, 2020 the BC Legislature held an emergency session to table and pass amendments to the BC Employment Standards Act in response to the significant uncertainty around employee leaves as a result of COVID-19. The amendments have been passed into law and include the following important changes:

1. Specific COVID-19 related leaves

Under the amendments, an employee is entitled to unpaid leave if any of the following situations apply in relation to COVID-19:

• If the employee has been diagnosed with COVID-19 and is acting in accordance with the instructions of a medical health officer, or advice of a medical practitioner, nurse practitioner or registered nurse
• If the employee is in quarantine or self-isolation in accordance with orders of the provincial health officer, an order made under the Quarantine Act, guidelines of the BC Centre for Disease Control or the Public Health Agency of Canada
• If the employer has directed the employee not to work due to the employer’s concern about the employee’s exposure to others
• If the employee is providing care to a child or person who is unable to withdraw from the employee’s care, specifically including due to the closure of a school, daycare, or other facility
• If the employee is outside BC and cannot return due to travel or border restrictions

Note that the leave entitlement lasts for as long as one of the above situations lasts. The employer is not permitted to require a note from a medical professional but may request “reasonably sufficient proof” that one of the above situations applies.

Importantly, the COVID-19 protected leave is retroactive to January 27, 2020. If an employer has terminated an employee for needing a leave from work due to any of the above reasons, the employer must offer re-employment to the same or comparable position to that employee.

2. Employees are now entitled to unpaid illness or injury leave in BC

Previously, BC was the only province without a formal provision for sick leave in our employment standards legislation. While employers may generally provide sick leave to employees, the Legislature has taken this opportunity to amend the Act so that all employees with more than 90 days of service are entitled to three unpaid days of sick leave per year during which their employment is protected. Employers may request “reasonably sufficient proof” of entitlement to leave.

If an employee takes a COVID-19 leave, illness or injury leave, or any of the other leaves mandated by the BC Employment Standards Act, an employer must continue to calculate annual vacation, pension, benefits, termination pay entitlements or length of service the same as they normally would. In addition, an employer cannot terminate an employee’s employment by providing actual notice that coincides with the employee’s leave.

The COVID-19 leave is intended as a temporary measure; however, unpaid illness or injury leave is expected to be maintained on a permanent basis. Employers must be mindful that employees are now entitled to these unpaid leaves. They may impact the business decisions that will be made in the coming weeks, particularly where employers anticipate the closure of operations in the face of COVID-19.

Other Changes Across Canada

There have been a cascade of changes across Canada in response to COVID-19 in recent days. While a comprehensive review of all changes is beyond the scope of this newsletter, we highlight a number of changes across Canada that are relevant to both employers and employees in these tumultuous times:

• In addition to the amendments to the Employment Standards Act, the BC Government has announced as of March 23, 2020 a COVID-19 Action Plan which includes in particular a BC Emergency Benefit for Workers which will provide a $1,000.00 payment to employees whose ability to earn income is affected by COVID-19 and who are in receipt of federal benefits. This benefit will likely not be available until May 2020. The Plan also provides for a deferral of Employer Health Tax payments and tax filing requirements. BC Student loan payments are also deferred as of March 30, 2020 for a period of six months. More information on the BC COVID-19 Action Plan may be found here: https://news.gov.bc.ca/releases/2020PREM0013-000545
• As noted in our previous newsletter on this topic, the Federal government announced an Economic Response Plan dealing with COVID-19 which includes various changes to eligibility for EI benefits as well as certain forms of emergency benefits. While employees may apply for EI at this time using the usual channels, other benefits announced as part of the Plan will not be available until April 2020. More information on these changes, and up-to-date information on implementation, may be found here: https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html
• Ontario and Quebec have both ordered the closure of non-essential businesses in order to prevent the transmission of COVID-19. No such announcement has yet been made in British Columbia-and the Provincial government has not indicated that this is forthcoming-but we will continue to monitor the situation should such a restriction be implemented here and affect a significant number of employers and employees.

Occupational Health and Safety Obligations

Employers have a duty to maintain a safe and healthy workplace pursuant to occupational health and safety regulations across Canada. Correspondingly, workers have a right to refuse work if they believe it presents an undue hazard, which may be a high threshold to meet in the present circumstances.

Most workers will not be able to make a claim for workers’ compensation related to the COVID-19 outbreak unless they can show that they contracted COVID-19 arising out of their work, and that the nature of the worker’s employment created a risk of contracting the disease significantly greater than the ordinary risk of the public at large.

WorkSafeBC had created a list of COVID-19 related resources on its website. The Resources can be found here: https://www.worksafebc.com/en/about-us/covid-19-updates. One of those resources is titled “Staying safe at work” and sets out appropriate preventative measures that employers must heed for workers who continue to work during this outbreak. Those include using respirators for certain tasks, not relying on surgical/procedure masks unless they are for use by someone who is ill themselves, social distancing, and protecting mental health during this challenging time.

Privacy Law – Medical Information and Record Retention

It is challenging for employers at the best of times to remain tight-lipped about all employee medical information they receive in the course of the employment relationship, particularly with respect to evolving and ongoing requests for accommodation. Other employees, suppliers, and clients often ask questions about an employee’s absence and once information about the employee’s health is disseminated, it is hard to put the “cat back in the bag”, as they say.

Unique to this outbreak at the moment is the employer’s obligation to send home workers – who are not already working from home – who have been working with someone in the past 14 days who is confirmed to have COVID-19. To the extent employers can, it is recommended to keep the original employee’s diagnosis confidential while informing their co-workers that they must go home due to possible exposure. Obtaining the original employee’s permission to tell their co-workers their name may be wise however, as this will allow the co-workers once home to have a more realistic appreciation of their individual level of risk in light of what they know about their prior proximity to that individual. This decision to do so should be made in consultation with the original diagnosed employee.

Further, employers need to remain mindful of, and remind their workers of, record retention requirements and the confidentiality of business records. In the haste to response to this pandemic, many employers decentralized work from the office to many remote locations, likely expanding where business records are being created and stored, with physically or on all kinds of new electronic equipment purchased to make the shift happen. Where employees are working from home and using their own technology, this concern is heightened as there is a greater risk of a loss of confidential information, as well as a possible challenge in obtaining access to and retaining all business records the employer is required to keep to comply with applicable legislation.

A Moving Target

This pandemic has created constantly shifting ground with an evolving legal picture each day. While we have tried to outline helpful information in our newsletters to date that highlight key legal issues brought about by COVID-19, our advice at this stage could change based on daily events and government interventions. We therefore encourage you to reach out for assistance with the specifics of your situation. Our lawyers are ready to answer your questions by phone and e-mail.