As an employer in British Columbia, you always owe certain legal obligations to your employees. The public health crisis over Covid-19 is bringing some of these into light. Below, we set out the obligations relevant to employers facing their workplace in the midst of the coronavirus outbreak.
Duty to provide a safe workplace
Under the BC Workers’ Compensation Act and Occupational Health and Safety Regulation, every employer is required to provide a safe workplace. This means taking sensible steps to prevent the spread of infection in the workplace. Likewise, employees are entitled to refuse unsafe work, without recrimination from their employer for doing so.
The BC Centre for Disease Control recommends the following measures:
- Practice “hand hygiene” by frequently washing hands with soap and warm water for 20 seconds, and avoiding touching your mouth, nose, or eyes;
- Practice “respiratory etiquette” by coughing or sneezing into your elbow or a tissue (and then washing hands after discarding the tissue);
- Practice “social distancing” by maintaining physical distance from others, and by staying at home if experiencing any symptoms of illness at all – not just those associated with COVID-19.
Employers should implement policies promoting these behaviours. Employers should also ensure employees have access to the tools they need to put these steps into practice, such as hand washing stations, disinfecting wipes and sprays, tissues, proper garbage disposals, and hand sanitizer.
In order to provide a safe workplace, employers will need to consider excluding sick employees from the workplace. This is discussed below.
Duty to accommodate
Under the BC Human Rights Code, employers have a duty to accommodate their employees’ protected characteristics, as well as a duty not to discriminate against their employees.
Duty to accommodate: an employee who contracts COVID-19 may fit the definition of “physical disability” found in the Human Rights Code. While it is not discriminatory to prevent such an employee from attending at the workplace, it would be discriminatory to take permanent steps like dismissing them, or cutting their pay or changing their job upon their return to work.
Duty not to discriminate: The coronavirus is associated with parts of the world where it has become prevalent. Currently these places include China, South Korea, Japan, Iran, and Italy. Employers must be sure not to adopt policies that single out employees because of their race, place or origin, or ethnicity.
Duty to provide statutory leave
Under the BC Employment Standards Act, employees are entitled to take certain unpaid leaves of absence. The employer is not required to pay the employee for taking these leaves, unless the employment contract expressly gives the employee such a right (our contracts typically do not do this unless you have specifically instructed us to include it).
The employer must allow the employee to take the following sorts of unpaid leave, if requested (in some cases a medical certificate is required):
- Up to five days of “family responsibility leave” to care for the health of a child or other member of the employee’s immediate family;
- Up to 27 weeks of “compassionate care leave” to care for family members who suffer from a serious medical condition with a significant risk of death within 26 weeks (likely related to elderly family members or those with chronic respiratory conditions);
- Up to 36 weeks of “critical illness or injury leave” to care for a minor family member (under 19 years) who fits certain medical criteria, or up to 16 weeks for a family member over 19;
- Certain kinds of bereavement leave in the event of the death of a family member.
If an employee takes one of these kinds of leave, their employment is deemed to be continuous during their absence for the duration permitted by the Act. They are entitled to all increases in wages and benefits they would have received if not for the leave. Upon the employee’s return you must return them to their former position; if that is not possible, you must return them to a comparable position.
March 24 update: Employees may now request Covid-19-Related Leave under the Employment Standards Act. This leave was created as a temporary measure to provide an unpaid leave for employees impacted by Covid-19, as an alternative to temporary layoff or permanent termination. Read more about this new kind of employee leave and how it impacts your business.
Duty to provide work
Employees are entitled to do their jobs and get paid. This is a common law entitlement that can be limited by express contractual wording. Without contractual wording that allows you to keep an employee out of the workplace without pay, any exclusion from the workplace (and any cut in pay) may be a termination. For this reason, you must act cautiously to avoid accidentally dismissing your employees by forcing them to stay home from work. The conflict here is that your obligation to provide a safe workplace involves encouraging employees to stay home if they have any symptoms of illness, while your duty to provide work and pay means this course of conduct may incur severance liability for your company. The easiest solution is to temporarily lay off the employee, if the contract allows.
Do I have a duty to pay employees while they’re not at work?
For most small businesses, paying employees during an extended period of sick leave is not an option. This is especially the case where the whole business shuts down due to lack of work or government mandate.
Subject to express contractual wording, you are not required to pay the employee while they are on leave due to illness or as permitted under the Employment Standards Act (i.e. absences initiated by the employee). Whether you can initiate the exclusion of the employee from the workplace, and from their pay, is a different question. At common law, any employer-initiated interruption to the employee’s pay could be treated as a termination necessitating severance pay.
In other words, your employment contract is very important here. If you do not have an employment contract that permits you to interrupt the employee’s work and pay, please speak with us about implementing one as soon as possible.