The COVID-19 Pandemic has had a significant impact on almost all areas of business, for employees and employers alike. While the COVID-19 pandemic and its effect of employment law is continuously evolving, this section is designed to give employees and employers some basic knowledge of how their rights and obligations have been impacted by the COVID-19 pandemic. If you have specific questions about COVID-19 and how it effects your business or employment contact the employment lawyers at Taylor & Blair LLP at 604-737-6900.
COVID-19 Employment Law For Employees
What if my employer changes my hours/duties/salary due to the COVID-19 pandemic?
Your employer cannot dramatically change your work hours, work duties, or salary due to the COVID-19 pandemic any more than they could before the pandemic. Any significant changes could result in an employee being able to claim constructive dismissal depending on the circumstances.
What if I don’t feel safe working during the COVID-19 pandemic?
So long as your employer is following the guidelines of Worksafe BC with respect to the types of safety plans that are required during the COVID-19 pandemic, you still have an obligation to go into work. Unfortunately, just because you don’t feel safe does not mean the workplace is unsafe by the Public Health Authorities and Worksafe BC’s standards. Failure to attend work in these scenarios could be viewed as an abandonment of your employment.
What if I refuse to wear a mask at work during the COVID-19 pandemic?
Maintaining a safe work environment is a duty owed by all employers in British Columbia. The Public Health Authorities and Worksafe BC have recommended wearing masks to combat the COVID-19 pandemic and have made it mandatory to do so if you are located indoors.
If you refuse to wear a mask at work absent a justifiable medical reason you could be putting your job at risk.
If I have to quarantine or isolate because of COVID-19 does my employer still have to pay me?
No, if you are off work because of COVID-19 your employer does not have to pay you if you are off work because you have contracted COVID-19 and have to quarantine or isolate.
People in this situation should look into Provincial and Federal benefits that are available. If you are still able to work remotely and complete your duties then you should be eligible to continue to receive your regular pay from your employer.
What if I get fired because of COVID-19?
The COVID-19 pandemic has not changed employment law with respect to termination. Unless your employment is terminated for just cause, a high bar, then you will be entitled to severance in lieu of notice as you would have been before the COVID-19 pandemic.
If your employer has fired you and allege it is due to COVID-19 contact the lawyers at Taylor & Blair LLP right away to make sure you get what you’re entitled to.
What if I received CERB benefits? Will that reduce the notice pay I am entitled to if I was unfairly dismissed?
While the law on this issue is not settled, a few Court decisions indicate that your severance pay will not be reduced by the amount of CERB that a dismissed employee obtains when it is not equitable to do so. An experienced lawyer can help determine if it would or would not be equitable in your case as each case differs.
My employer wants to lay me off temporarily due to Covid-19. Can they do that?
Due to the unprecedented economical impact of the COVID-19 pandemic, many employers are placing employees on temporary lay offs. These employers often tell their employees that they intend on bringing the employees back once the economy rebounds. However, unless there is a contract which allows them to do so an employer would need the employee to agree to a temporary lay off, otherwise it is a breach of contract, allowing the employee to claim constructive dismissal.
My employer laid me off temporarily due to COVID-19 and I am now back at my job. Can I sue for the losses I suffered during the temporary lay off?
Yes, you can, so long as there was no contractual right for the employer to do so. While this is a novel issue recent case law out of Ontario has addressed this issue and confirmed that temporary lay offs due to COVID-19 do not take away an employee’s right to sue for constructive dismissal, even if it was due to the COVID-19 pandemic.
What if I want to take time off work to get my COVID-19 vaccination?
British Columbia is one of a small number of provinces that does guarantee an employee’s right to take a leave from work to get a COVID-19 vaccination, however there is no requirement for your employer to pay you during this leave. This may change in the future.
What Federal assistance is there for employees during the COVID-19 pandemic?
The Federal Government has numerous programs in place to help employees during the COVID-19 pandemic, including the Canada Recovery Benefit (CRB), the Canada Recovery Sickness Benefit (CRSB), and the Canada Recovery Caregiving Benefit (CRCB), amongst others.
What Provincial assistance is there for employees during the COVID-19 pandemic?
The British Columbia government has taken numerous steps to help employees during the COVID-19 pandemic, including issuing the BC Recovery Benefit, putting a freeze on rent increases and establishing protection for renters, and job protected leave for employees to get vaccinated, amongst other steps.
COVID-19 Employment Law For Employers
What are my responsibilities when it comes to workplace health and safety during the COVID-19 pandemic?
All employers in British Columbia have a duty to provide their employees with a work environment which is safe. In the COVID-19 pandemic this obligation takes on a new meaning and employers should make sure they have safety protocols in place to deal with issues that arise while living through the COVID-19 pandemic.
Employers should ensure that all employees who are coming into work confirm the following daily:
- That they have not travelled outside of Canada within the last 14 days;
- That they have not been identified by the Public Health Authority as a close contact of someone who had COVID-19;
- That they have not been told to isolate by the Public Health Authority; and
- That they are not displaying any symptoms of COVID-19, in specific fever or chills, cough, loss of sense of smell or taste, difficulty breathing, sore throat, loss of appetite, extreme fatigue or tiredness, headache, body aches, nausea or vomiting or diarrhea.
If an employee does not confirm the foregoing, they should be sent home immediately.
Employers can also ensure their workplaces are safe during the COVID-19 pandemic by ensuring there are COVID-19 systems in place to encourage mask wearing, social distancing, washing of hands, and sanitizing of objects and surfaces.
What if employees feel unsafe at work despite a safety plan in place?
So long as you have established safety protocols which align with the current advice from the Public Health Authorities and Worksafe BC, employees still need to come to work, even if they personally feel the workplace is unsafe.
What if an employee has symptoms or has travelled outside of Canada within the last 14 days?
If an employee has symptoms of COVID-19, has travelled outside of Canada within the last 14 days, or has been identified by the Public Health Authorities as a close contact of someone with COVID-19, then an employer has an obligation to send that employee home to isolate, to ensure the workplace is safe for the other employees working there.
Does an employer have to pay an employee who is quarantined at home because of COVID-19?
There is no legal obligation to pay an employee who is quarantined at home because of COVID-19.
If the employee is entitled to vacation leave or paid sick leave pursuant to the contract of employment, then they would be able to benefit from these or any of the provincial and federal government benefits available.
What are an employer’s obligations if staff are working from home?
If some or all of your staff are working remotely from home during the COVID-19 pandemic, while you can still expect your employees to maintain regular working hours and fulfill their duties to the same level they would if they were not working remotely, an employer can also be required to assist with the transition to remote working, including paying for or reimbursing employees for equipment needed to work remotely, for example a desk to use as a work space, a printer, etc.
Employers should also be aware that they need to confirm their intention with respect to employees working at home and whether it will extend beyond the COVID-19 pandemic. Absent ongoing confirmation that remote working is temporary, and employee could allege that the right to work remotely is now an implied term of their employment contract.
Can I temporarily lay off staff during the COVID-19 pandemic?
In British Columbia you can lay off staff temporarily, but only if there is an employment contract that provides for temporary lay offs, it is a norm in the specific industry, or an employee agrees to the temporary lay off.
If you do not have specific contractual provisions for a temporary lay off, the employee’s agreement or it is an industry norm, then employees can allege constructive dismissal and seek damages.
What if employees do not want to return to work after a temporary layoff?
If an employee does not want to return to work after a temporary layoff, either because they are making more money relying on government benefits, or just do not feel safe returning to work in the COVID-19 pandemic, so long as the workspace has a safety plan in place that meets the current standards, employers can consider such employees as having resigned and therefore would not be entitled to severance.
If an employer believes an employee has resigned in circumstances like this is it important to confirm the acceptance of any resignation in writing.
What if employees return to work after a temporary layoff? Do I have any exposure?
Just because an employee returns to work after a temporary lay off due to COVID-19 does not mean an employer’s exposure during the period they were laid off disappears. Recent case law out of Ontario confirms that temporary lay offs due to COVID-19 does not extinguish an employee’s right to pursue damages for wrongful dismissal absent an agreement between the employee and employer which provided consideration to the employee for the temporary lay off.
In the wake of the numerous industries who used temporary lay off’s in the COVID-19 pandemic this will be a significant area of concerns for employers in British Columbia and will likely lead to significant litigation.
What if an employee wants time off work to get a COVID-19 vaccine?
British Columbia is one of a few jurisdictions that specifically allow for employees to take time off of work to get a COVID-19 vaccination. Currently the right for leave to get vaccinated is unpaid, but that may change in the future.
What Federal assistance is there for employers during the COVID-19 pandemic?
The Federal Government has numerous programs in place to help employers during the COVID-19 pandemic, including the Canada Emergency Wage Subsidy (CEWS), Canada Emergency Business Account (CEBA) interest-free loans, Canada Emergency Rent Subsidy (CERS), Large Employer Emergency Financing Facility (LEEFF), amongst others.
What Provincial assistance is there for employers during the COVID-19 pandemic?
The British Columbia provincial government has numerous programs in place to help employers during the COVID-19 pandemic, including the Small and Medium Sized Business Recovery Grant, the Launch Online Grant Program, the Circuit Breaker Business Relief Grant, Bill relief programs with BC Hydro, FortisBC and ICBC, and the B.C. Increased Employment Incentive program, amongst others.
The above information is intended to be a general information overview and should not be considered as legal advice. Please contact the lawyers at Taylor & Blair LLP if you have specific questions about your case.