The following provides general guidance to workers dealing with the potential impacts of COVID-19 on their employment. The information contained below is subject to change as the COVID-19 pandemic progresses. All should appreciate that this is an evolving situation and we will continue to update our clients as matters change. For specific issues, please speak with your union, or your VSLO lawyer.

In B.C., the law requires employees to refuse work if they have “reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person”. However, not all hazards give workers the right to refuse. For a hazard to reach the standard of an “undue hazard”, it must be excessive or unwarranted. Undue hazards are more than a risk.

In worksites governed by federal safety legislation, the law allows employees to refuse work “if the employee while at work has reasonable cause to believe that a condition exists in the place that constitutes a danger to the employee”, except where the refusal “puts the life, health or safety of another person directly in danger” or where the danger “is a normal condition of employment”. The federal legislation also requires more than a risk to support an employee’s work refusal.

Whether it is reasonable for an employee to believe that their worksite creates an undue hazard (in B.C.), or danger (federally), of COVID-19 transmission will depend on the circumstances. If an employee is considering refusing work because of COVID-19, the employee must be prepared to explain to their employer why they believe attending work is an undue hazard or danger. Depending on the circumstances, it may not be enough for an employee to rely on the COVID-19 crisis as the sole reason for refusal.

Should I tell my employer if I have symptoms of COVID-19 or if I am diagnosed?

The amount of information that an employer is entitled to know about an employee’s illness is, in normal circumstances, limited to what the employer needs to know in order to accommodate an employee at the workplace, or confirm their inability to perform their work with accommodation. For example, while an employer may be entitled to know whether an employee can attend work or not, or whether there are any restrictions that limit what kinds of duties that the employee can safely perform, employers are rarely entitled to know a diagnosis. However, the COVID-19 crisis is not a normal circumstance.

If you have symptoms of COVID-19 you should not attend your workplace for any reason. You should consider telling your employer if you develop symptoms of COVID-19 and if you are diagnosed, particularly if you have been to the worksite recently. This will allow your employer and the health authority to take necessary measures to protect the other employees at the worksite, and do what is necessary to limit the spread of the disease to the public.

For the same reasons, if you are diagnosed with COVID-19, the health authority may disclose this to your employer in their effort to contain the spread of the disease. However, your employer should keep your diagnosis as confidential as possible.

Can my employer terminate my employment because I have to stay home to look after family who are sick? Or because my kids’ school or daycare is closed due to COVID-19?

Your employer cannot terminate you because you have to stay home to either look after your kids due to school closures or to look after a dependent adult who is your child or former foster child as a result of COVID-19. You are entitled to take leave related to COVID-19 as long as the circumstances require, and you cannot be terminated during such time.

For other family members, for example parents, grand-parents and spouses, employees in BC are entitled to take off up to five unpaid days off each year to meet their responsibilities related to care or health of their immediate family members. Therefore, your employer cannot terminate you if you have taken five or less days off for this purpose.

Depending on the circumstances, you may also be entitled to take critical illness or injury leave if the life of a family member is at risk.

Federally regulated employees are entitled to take up to 16 weeks of leave if they are unable to work due to COVID-19. This includes being unable to work because you need to take care of your children because schools are closed due to COVID-19 or because you caring for a family member who is ill due to COVID-19. You are required to provide your employer with written notice of the reason for leave and its length, but do not need to provide a certificate from a health care practitioner. You cannot be terminated by your employer for taking this leave.

For unionized employees, you may be entitled to additional leave and protections from termination under your collective agreement. For non-unionized employees, you may also be entitled to additional leave under your employment contract.

What are my rights if I am laid off from work because the business has slowed down?

In BC, employers can lay you off temporarily for a maximum of 13 weeks in any period of 20 consecutive weeks provided that that is a term of your employment contract. An employer is not required to pay you during that time, but you may be eligible for employment insurance benefits.

If your employment contract or collective agreement does not provide for temporary lay off during business slow downs, you may be entitled to treat your employment as having been terminated.

Even if your employment contract provides for you to be laid off for up to 13 weeks, if you are laid off for a longer time period, you will be considered terminated. Upon termination, you are entitled to be paid wages for a certain number of weeks, depending on your length of service.

For unionized employees, you may be entitled to additional protections related to layoffs under your collective agreement. For non-unionized employees, you may also be entitled to additional protections under your employment contract.

Can my employer terminate my employment because I’m off sick with a COVID-19 infection?

No. The Ontario Human and BC Human Rights Commissions have issued statements indicating that discrimination in employment on the basis of COVID-19 constitutes discrimination on the basis of “disability” contrary to the Human Rights Code. While an employee is off from work due to illness from COVID-19, their employer would be obligated to accommodate their disability to the point of undue hardship. It is likely, although not certain, that the BC and Canadian Human Rights Tribunals will adopt this same interpretation of the law.

In addition, in March 2020, B.C.’s Employment Standards Act was amended to provide employees with a right to take unpaid leave for specific COVID-19 related reasons which include where the employee has been diagnosed with COVID-19 and is following the instructions of a medical health officer or the advice of a doctor or nurse to stay home from work.

Similarly, effective March 25, 2020, federally regulated employees have the right to take unpaid leave for reasons related to COVID-19, pursuant to a new “Leave Related to COVID-19” that has been added to Part III of the Canada Labour Code. Under this new leave, employees who are “unable or unavailable to work for reasons related to COVID-19” are entitled to a leave of absence of up to 16 weeks, or such number of weeks that may be set by regulation. Federally regulated employees who are required to quarantine due to being ill with COVID-19 will be entitled to leave under this provision.

A federally regulated employee is required to give written notice to the employer as soon as possible with respect to the reasons for the leave, and its intended length or any change in the length of the leave. An employer may also require the employee to provide a written declaration in support of the reason for the leave, or any change to the length of the leave.

Additional protections may be available for unionized employees through their collective agreement and individual employment contracts for non-unionized employees.

Do employee extended health and dental benefit coverage continue after I’m laid off due to a slow down of business?

This is a complicated question that depends on the circumstances of your employment, your lay-off and the terms of the group insurance plan that governs extended health and dental coverage in your workplace. If you are not in a union, a layoff due to slowdown generally means termination of employment, but that may not be the case during these exceptional circumstances. Consequently, you may be able to enjoy continued benefit coverage for longer than you would otherwise, but this is uncertain and untested.

Many extended health and dental plans terminate coverage on the date of the termination of your employment, though you can still make claims for a specified period of time following termination for eligible expenses (usually 90 days). Some plans extend coverage for a period of time after termination. The rules that apply to you will be set out in your plan document.

You may also be entitled to continued coverage during the notice period required by statute and/or the common law. Employers are required to give notice of termination and failure to do so can result in damages in lieu of notice, including medical and dental expenses during this period. Again, the extent to which these rights apply during these unprecedented times has yet to be tested. If you are in a union, you may be entitled to a longer period of health and welfare coverage during a layoff period. You should contact your union, or one of VSLO’s lawyers, to ask for their assistance with this issue.

What are my rights if my company declares bankruptcy due to business slow down?

In addition to your rights to Employment Insurance described above, you have recovery rights over unpaid wages in your company’s bankruptcy proceedings. First, if you are owed any compensation by your bankrupt employer, including salary, commission, bonuses, vacation pay, severance or termination pay, you should ensure that this debt is known to the Trustee in bankruptcy. You should contact the Trustee in bankruptcy to ensure that this debt is accurately listed. Second, if you earned unpaid wages or compensation within the 6 months prior to your employer’s bankruptcy, you should make a claim to Service Canada under the Wage Earner Protection Program as soon as possible. For bankruptcies in 2020, you would be entitled to a maximum of $7,296.17 for eligible unpaid wages and compensation. After receiving WEPP benefits, you could still recover further outstanding amounts in bankruptcy but that would depend largely on the assets of your employer and the extent to which other creditors have security or priority over your wage claim.

What benefits am I entitled to if I have to miss work due to COVID-19?

On March 25, 2020, the federal government passed Bill C-13, the COVID-19 Emergency Response Act. The Act superseded many of the changes to Employment Insurance benefits that were announced the week earlier and replaced those with a simplified benefit called the Canada Emergency Response Benefit (CERB). CERB will provide a taxable payment of $2000 a month to eligible individuals for a sixteen week period. Applications for CERB will be available on the Canada Revenue Agency’s website in early April.

CERB covers your situation if:

You are laid off due to work closures arising out of COVID-19
You have been asked by your employer not to attend work due to COVID-19
You are unable to work as a result of being quarantined, or the quarantine of a family member
You are unable to work as a result of the closure of your child’s school or daycare

CERB is intended to provide more expansive coverage than EI, covering contractors, self-employed workers, gig economy workers, and caregivers, in addition to covering workers who would have otherwise qualified for regular EI and EI sickness benefits. The government has indicated that CERB is intended for employees who do not already have paid leave or other forms of income support.

In order to receive CERB benefits, you must have received no income for 14 consecutive days within a 4 week period in which you apply for the benefit. You must be over 15 years of age and have made $5000 in income from employment, self-employment, or maternity or paternity leave benefits in 2019 or the 12 months preceding the application in order to qualify for CERB.

If you have applied for regular EI benefits or EI sickness benefits, you do not need to reapply for CERB as your application will be rolled over and processed as a CERB application. EI benefits payable to workers after March 15 will be paid out at the $2000 per month CERB rate, and paid out at the regular EI rate following the 16 week period that CERB applies.

If you have been laid off by your employer due to a shortage of work or business closure and you expect to be out of work for more than 16 weeks, you may wish to apply for regular EI benefits. Regular EI benefits may be available for between 14 – 45 weeks, depending on the rate of unemployment in your region.

If you are currently on EI and your benefits end before October 2, 2020, you can apply for CERB if you otherwise meet the eligibility requirements. Similarly, if you apply for and receive CERB benefits and are still out of work due to COVID-19 when those benefits expire, you may apply for regular EI benefits if you meet the eligibility requirements.

If you have been tested and diagnosed with COVID-19 you will have been directed to quarantine by a medical professional and will qualify for CERB benefits. The above directions with respect to quarantined employees without a diagnosis will also apply to you. Follow the direction of your medical professional with regard to the conditions of your quarantine.

More information is available on the government’s dedicated COVID-19 page.

If you are a renter in British Columbia, you may also be eligible for BC Housing’s BC Temporary Rental Supplement Program (BC-TRS) which will provide a $500 supplement to your monthly rental payments. Details of this program are expected to be announced shortly, and this supplement will work in conjunction with the federal CERB benefit to ensure housing security for those out of work as a result of COVID-19.

Our Lawyers

Christina Batstone

Associate

Should I tell my employer if I have symptoms of COVID-19 or if I am diagnosed?

Can my employer terminate my employment because I have to stay home to look after family who are sick? Or because my kids’ school or daycare is closed due to COVID-19?

What are my rights if I am laid off from work because the business has slowed down?

Can my employer terminate my employment because I’m off sick with a COVID-19 infection?

Do employee extended health and dental benefit coverage continue after I’m laid off due to a slow down of business?

What are my rights if my company declares bankruptcy due to business slow down?

What benefits am I entitled to if I have to miss work due to COVID-19?

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