An Employer’s Guide to Managing COVID-19 in the Workplace · 16/03/2020  · employee takes the...

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An Employer’s Guide to Managing COVID-19 in the Workplace Prepared for: Greater Langley Chamber of Commerce Prepared by: Christopher Drinovz Lawyer with KSW Employment & Labour Group Executive Member, Employment Law Section of the Canadian Bar Association Date: March 16, 2020

Transcript of An Employer’s Guide to Managing COVID-19 in the Workplace · 16/03/2020  · employee takes the...

Page 1: An Employer’s Guide to Managing COVID-19 in the Workplace · 16/03/2020  · employee takes the leave under their employment contract, the employee is considered to have also taken

AnEmployer’sGuidetoManagingCOVID-19intheWorkplace

Preparedfor:GreaterLangleyChamberofCommercePreparedby:ChristopherDrinovz

LawyerwithKSWEmployment&LabourGroupExecutiveMember,EmploymentLawSectionofthe

CanadianBarAssociation

Date:March16,2020

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UpdatesonTravel

•  OnMarch12,2020,BCPublicHealthAuthoritiesannouncedthatanyonewhochoosestotraveloutsideCanadamustself-isolatefromworkandschoolfor14daysuponreturntoBC.

•  OnMarch14,2020thePublicAgencyofCanadalistedallcountriesoutsideofCanadaasLevel3Riskandallpersonsreturningfromanycountryarenowaskedtoself-isolatefor14daysaftertheirreturntoCanada.

•  Therefore,itisreasonableandexpectedthatemployersaskallemployeesreturningfromoutsideofCanadatostayawayfromtheworkplacefor14days(eveniftheydon’tseemill).

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RestrictingEmployeeTravel

•  Youcanandshouldplacerestrictionsonbusiness-relatedtraveloutsideofCanada.

•  Youmaynotbeabletobanleisure/personaltravel,butyoucanrequireemployeeswhoaretravellingoutsideCanadatodisclosetheirtravelandself-isolatefor14daysupontheirreturn.

•  YoushouldsharethenewtravelhealthadvisoriesregardinganytraveloutsideCanadaandclearlycommunicaterestrictionsordisclosurerequirementstoallemployees.

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EmployeeCompensation&SickLeave•  EntitlementtopayforemployeesaffectedbyCOVID-19willdependon

contractsofemployment,personnelpoliciesand/oryourcollectiveagreement.

•  Iftheemployeeiseligibleforsickleave,theyareentitledtopayifsickwithCOVID-19.Absentsickleave,anemployerisnotrequiredtopayanemployeewhodoesnotworkduetoCOVID-19.However,ifnotpaid,theremaybeariskthataworkerwillfeelconstructivelydismissedifthereductioninannualizedearningsissignificant.

•  Considerallowingemployeestoworkfromhome.Whenthisisnotpossible,inviteemployeestousevacationdays,bankedtimeoroffertoletthemmakeupthetimeatalaterdate.

•  Consideramendingyourpoliciestoreflecttherealitiesofthepandemicandensuretheyarenotpunitive.Forexample:-  relaxingleavepoliciestoallowemployeestoavailthemselvesofvacation

andsickdays.-  reconsiderrequiringamedicalnotewhenanemployeehasflu-like

symptoms(asrequestedbyBCHealthOfficialsonMarch12,2020).4

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EmployeeBenefits

•  Encourageaffectedemployeestoconsultwiththeirdoctorandinsurertoconsiderifshort-termdisabilityleavemaybeanoption.

•  Contactyourbenefitsprovidertodetermineanycircumstancesunderwhichanemployeewouldbeillegibleforcoverageunder(e.g.traveloutsideofCanadaagainstadvisory)andadviseyouremployeesofthisinformation.

•  Encourageemployeestoinformthemselvesofwhatfinancialreliefisavailablefromthefederalgovernment(seenextslide).

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EmploymentInsuranceBenefits•  Employeeswhoarenoteligibleforsickleavebenefitsor

otherformofpaidleavemayqualifyforupto15weeksofEmploymentInsurancesicknessbenefits.

•  Thefederalgovernmenthasannounceditiswaivingthe1-weekwaitingperiodforbenefitstostartforworkerswhoarequarantinedduetoCOVID-19.

•  Anemployeequalifiesforwaiverofthe1weekwaitingperiodif:1.  Thereisanoticeororderfromapublichealthofficialorauthorityto

selfquarantine(i.e.iftheytravelledoutsideCanada;orattendedaspecificeventanddon’tfeelwell);or

2.  Theyhavereceivedarecommendationtoquarantinebytheiremployer,medicaldoctor,anurseorapersoninauthority.

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EmploymentInsuranceBenefits

•  Workerswhovoluntarilychoosetoself-isolateduetoCOVID-19withoutbeingillordirectedtodosobytheemployeroramedicalprofessionalmightnotbeentitledtowaiverofthe1stweekwaitingperiodforEIbenefits.

•  Eveniftheemployeedoesnotqualifyforthe1weekwaiver,theymaystillqualifyforEIsicknessbenefitsasusual(nobenefitsforthe1stweek).

•  Atthistime,thisreliefisonlyavailabletopeoplewhoqualifyforEIbenefits.Thismightchange.

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FamilyResponsibilityLeave•  TheBCEmploymentStandardsAct(ESA)providesatypeof

unpaidleavethatcouldapplyinanpandemicsituation:FamilyResponsibilityLeave.

•  Anemployeeisentitledtouptofivedaysofunpaidleaveeachyeartohelpwiththecare,healthoreducationofachildundertheageof19intheircare,oranyothermemberoftheirimmediatefamily.

•  Ifanemploymentcontractprovidesforequivalentormoregenerousfamilyresponsibilityentitlements(forexample,paidleaveormorethan5“familyresponsibilitydays”),andtheemployeetakestheleaveundertheiremploymentcontract,theemployeeisconsideredtohavealsotakenfamilyresponsibilityleaveundertheESA.

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DutytoProvideaSafeWorkplace•  EmployersinBCarerequiredunderoccupationalhealthandsafetylawsto

protecttheiremployeesandotherworkersfromwork-relatedhazards,includinganyinfectiousdiseaseposingariskattheirworkplace.

•  WorkSafeBC’s“ControllingExposure:ProtectingWorkersFromInfectiousDiseases”liststhefollowingobligationsforemployers:–  identifyinginfectiousdiseasesintheworkplace–  developingandimplementinganexposurecontrolplan–  educating,trainingandsupervisingworkersonsafeworkprocedures,includinghand-

washing–  directingworkerstoseekmedicalattention,asrequired.

•  Furthertothisduty,anemployershoulddirectaworkerfromtheworkplace,andanyotherworkerwhocameintoclosecontactwiththeworker,tonotattendwork,if:–  theyareilland/orexhibitanycoldorflu-likesymptoms–  theyhaveCOVID-19–  theyreturnedfromanywhereoutsideofCanada

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WorkRefusals•  AnemployeehastherighttorefuseunsafeworkunderBC’s

occupationalhealthandsafetylawsiftheyhavereasonablecausetobelievethatperformingtheirworkwouldcreateunduehazardtothehealthandsafetyofthemselvesoranotherperson.

•  TheOHSRegulationsoutlinespecificproceduresthatmustbefollowed–theemployermustinvestigatetheconcerns,andtakeanyreasonablemeasurestoreduceoreliminatetheworkplacehazard.

•  InthecaseofrefusalduetoCOVID-19,werecommenderringonthesideofcautionandrespectingtheworkrefusaluntilconductinganinvestigation.

•  Anemployerisnotpermittedtoretaliateagainstanemployeewhoexercisestheirrighttorefuseunsafework.ThiscouldleavethemliableforaDiscriminatoryActionComplaintundertheWorkersCompensationAct.

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WorkSafeBCCompensation&COVID-19•  AworkerisnotentitledtocompensationfromWorkSafeBCsimply

becausetheycontractedCOVID-19whileatwork.

•  AworkermayqualifyforWCBbenefitsduetoCOVID-19if:–  thenatureoftheworker’soccupationcreatesariskthattheywould

contractacontagiousdiseasetowhichthepublicatlargeisnotnormallyexposed;or

–  thenatureoftheworker’semploymentcreatesfortheworkerasignificantlygreaterriskofcontractingaviralinfection(COVID19)thantheordinaryexposureriskofthepublicatlarge.

•  AworkermayalsoqualifyiftheycontractedtheviruswhiletravelingtoanothercountryaffectedbyCOVID-19forworkpurposes.

•  Ifyoubelieveyouremployeesmayfallintooneofthesecategories,youshouldreportanycasestoWorkSafeBC.Examplesinclude:carehomeworkers,healthcareworkers,firstresponders,andothers.

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HumanRightsIssues•  Negativetreatment,includingtermination,ofemployeeswhohave

orareperceivedtohaveCOVID-19isdiscriminatoryandprohibitedundertheBCHumanRightsCode.

•  ItisnotdiscriminatorytolayoffemployeeswhenthereisnoworkavailableduetoCOVID-19.However,thismayamounttowrongfuldismissaloftheemployee(discussedinnextslides).

•  EmployershaveadutytoaccommodateemployeesinrelationtoCOVID-19uptothepointofunduehardshipbasedoncostsorhealth&safety.Thismayincludeaccommodatingemployeeswhomustcareforanotherfamilymemberwhoisillorinisolation,orachildwhoseschoolisclosed.

•  AnemployershouldnotsendanemployeehomeoraskthemnottoworkbecauseofconcernsoverCOVID-19unlesstheconcernsarereasonableandconsistentwiththemostrecentadvicefrommedicalandPublicHealthofficials.

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WorkplaceHealthTesting&Privacy

•  Compulsoryhealthtestingofallemployees,suchasmandatorytemperaturechecks,maynotbepermittedbyhumanrightsandprivacylegislation.However,astheprevalenceofCOVID-19continuestoescalate,itmaybecomereasonableforemployerstotakemoreaggressivehealthtestingmeasuresintheworkplacetomeettheirhealthandsafetyobligations.

•  EmployersshouldcontinuetoreviewrecommendationsfromthePublicHealthAgencyofCanadaandprovincialhealthauthoritiesandconsultwithanexperiencedemploymentorlabourlawyerbeforeimplementinganyproceduresthatgobeyondtheirrecommendations.

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WorkplaceHealthTesting&Privacy

•  InformationshouldonlybecollectedtothelimitedextentnecessarytoachieveCOVID-19preventativeorprecautionarymeasures.Accesstothisinformationshouldbelimitedtomanagementand/orhumanresources.

•  Foranycollectionofpersonalinformation,includingmedicaltestingdataandabsenteeismrecords,employersmustfollowapplicableprivacylegislationregardingtheuse,disclosureandsecurityoftheinformation.Innocaseshouldanypersonalinformationbedisclosed,exceptasrequiredbylaworwiththeemployee’sexpressconsent.

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Lay-offsandTermination•  Ifyoulayoffemployeesduetoshortageofworkcausedby

COVID-19(eventemporarily)beawarethatinmostcasesthiswillbeconsideredawrongfuldismissalentitlingemployeestoterminationpayundertheESAand/orseverancepayundertheemploymentcontract.

•  Exceptionsincludewherethecontractexpresslypermitstemporarylay-offsorincertainseasonalindustrieswherelay-offsareexpected.

•  Inallcases,atemporarylayoffwillbecomeaterminationundertheESAiftheabsenceismorethan13weeksina20weekperiod.

•  Inuniquecircumstances,theemployermaydefendawrongfuldismissalclaimbyarguingthatCOVID-19frustratedtheemploymentcontract.Youshouldconsultalawyerifyoubelievethismightapplytoyou.

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OperatingWithSickorAbsentEmployees

•  YouarepermittedtohiretemporaryemployeestofillinforpersonsabsentduetoCOVID-19.Thetemporaryworkersshouldsignacontractspecifyingthelimitedperiodofemployment.

•  Youmayalsorequirehealthyemployeestoworkadditionalhours,solongasyoucomplywiththeovertimerequirementsoftheESAanddonotrequireemployeestoworkexcessivehours.

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ResourcesforEmployers•  ChecklistofkeyconsiderationsforbusinessespreparedbytheProvinceofBC

–  https://smallbusinessbc.ca/wp-content/uploads/2020/03/small-business-resource.pdf•  Guides:

–  CPHRBC&Yukon:https://cphrbc.ca/coronavirus-covid-19-advice-for-canadian-employers/

–  CanadianHRReporter:https://www.hrreporter.com/employment-law/news/7-key-questions-for-employers-dealing-with-covid-19/327403

–  CanadianLabourandEmploymentLaw:https://www.labourandemploymentlaw.com/2020/03/covid-19-checklist-for-canadian-employers/

•  WHO–GettingyourworkplacereadyforCOVID-19:–  https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?

sfvrsn=359a81e7_6

•  Fornationalandlocalupdates,youcouldencouragestafftovisitthelink:PublicHealthAgencyofCanada–  https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

•  BCspecificresources:–  BCCentreForDiseaseControl:http://www.bccdc.ca–  VancouverCoastalHealth:http://www.vch.ca

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Disclaimer:TheinformationcontainedinthisGuideisnotintendedtobelegaladvice,maynotbeuptodateanddoesnotcreatealawyer-clientrelationshipbetweenyouandKaneShannonWeilerLLP.YoushouldconsultwithoneofourlawyersbeforeactingorfailingtoactonanyinformationcontainedinthisGuide.


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