Covid-19: Employer Rights

As an employer in British Columbia, you have certain legal rights in the way you manage your workplace.  The public health crisis over Covid-19 is bringing some of these into light.  Below, we set out the rights relevant to employers in the midst of the coronavirus outbreak.

Right to lay off

Please note: On Monday, March 23, 2020, the BC legislature will use its emergency powers to make amendments to the Employment Standards Act.  These amendments may impact an employer’s right to lay off employees.  We will update this page as the new legislation is released.

Here we are speaking about a temporary layoff, which is different from a termination.

If your employment contract allows you to lay off your employees, then you may do so in accordance with the Act.  Some employers anticipate shutting down their whole business and laying off all of their employees, others expect to lay off only some employees but to keep operations running at a reduced level.  If you have reserved the contractual right to lay off your employees, you may do so for up to 13 weeks (in a 20-week period) without having to pay severance.  The proper procedure is to issue a Record of Employment indicating the first day of layoff and expected date of recall (no more than 13 weeks in the future).  The federal government has indicated it will waive the one-week qualifying period for employees with COVID-19 related illnesses to access medical EI benefits.  To help your employees access EI benefits as quickly as possible, you may wish to indicate in the Record of Employment that the layoff is related to a reduction in business resulting from COVID-19.  The guidelines for employee eligibility for employment insurance are found here:

A layoff that continues for more than 13 weeks becomes a termination under the Act, necessitating severance pay.  Therefore, you must remain cognizant of the length of time any temporary layoff is carrying on for, and take steps to prepare for layoffs that will extend beyond 13 weeks.

If there is no contractual right of layoff, any temporary layoff can be treated as a termination at common law and under the Employment Standards Act.  We strongly recommend you contact us prior to temporarily laying off any employees, to confirm that you have a contractual basis to do so. 

Right to reasonable medical information

Along with your responsibility to provide a safe workplace, you have a limited right to obtain medical information concerning your employees.  This right is not well defined unless you have a contract with express wording concerning employee medical information.  At a minimum, in the case of employees who have been off work due to illness and are attempting to return, you have a right to prevent that employee from returning to work until they provide a doctor’s certificate clearing them of contagious illness or other disabilities that could impact their ability to work safely, or the safety of those around them.  We recommend you obtain this medical clearance prior to permitting any employee back to work who has been off for more than 5 business days due to illness.