Labour and Employment Law Blog

COVID-19 has now been characterized as a pandemic by the World Health Organization. Although the number of reported cases in Canada is currently low in comparison to some other countries, public health authorities have cautioned that this situation may change rapidly. As part of this quickly changing situation, employers need to be prepared to address related workplace issues.

The following summary addresses general issues for workplaces related to COVID-19. This is general information only. Each employer will face its own unique workplace and individual circumstances. For example, employers who operate health care facilities may be subject to more rigorous requirements. As well, unionized employers must consider collective agreement requirements, including any duty to consult with the union.

Are you required to pay employees who are not at work due to COVID-19?

If an employee is unwell or suspects that they may have the virus, the employee should be encouraged to stay away from the workplace and obtain medical advice. The employee may be eligible for sick leave or employment insurance (EI) benefits.

If an employee is diagnosed with COVID-19 and is not working, then the employer is not required to pay the employee. The employee may be eligible for sick leave benefits provided by the employer depending on the terms of the plan. If the employer does not provide sick leave benefits, the employee should be eligible for EI benefits as discussed below.

A slightly different situation arises where an employee cannot work because they are required by health officials to self-isolate due to contact with a person with COVID-19. In terms of sick leave benefits, employers who self insure their short term sick leave plans may elect to extend coverage to employees in these situations who are not ill but are required to self-isolate due to exposure to the virus. Employers who have insured sick leave plans should consult with the insurer if these types of absences will be covered by the plan. The employee may be able to receive EI benefits if they meet the EI definition of quarantine discussed below. Also, employers should also consider allowing employees to access their paid vacation time for this period.

Another situation is where an employer requires an employee to self-isolate due to the employer’s fear that the employee may have come into contact with someone outside the workplace with COVID-19, but the employee themselves is not sick and a health official has neither recommended nor ordered them quarantined. In those circumstances, employers should consider continuing to pay the employee since an employer’s fear alone is likely insufficient reason to ban the employee from work. Employers should be mindful of possible claims of constructive dismissal or breach of contractual wage provisions if an employee capable of working is required to stay home and is not paid.

Given the interest in containing the spread of the disease, employers may wish to encourage employees to work remotely to the extent that is possible. Employees who are working remotely are entitled to receive their regular pay and benefits. Employees should also be able to access vacation if they choose.

What employment insurance benefits are available?

On March 11, 2020, as part of the COVID-19 Response Fund, the government of Canada waived the mandatory one-week waiting period in applying for EI sickness benefits for those workers who are sick or quarantined due to COVID-19. The worker would need to complete an online EI application form and provide:

• a medical certificate completed by a medical professional confirming the diagnosis of COVID-19 (waived if the worker is quarantined or directed to self-isolate by a health authority); and
• a record of employment.

The general eligibility requirements for EI sickness benefits include that the worker has accumulated 600 hours of insurable employment in the 52 weeks before the start of this claim or since the start of the worker’s last claim, whichever is shorter.

What restrictions may be placed on employee travel?

Many employers have instituted restrictions on non-essential business travel and prohibit business travel to countries subject to a level 3 or 4 government health travel advisory. Level 3 is to avoid all non-essential travel and level 4 is to avoid all travel. Currently China, Italy and Iran are at level 3. If business travel is required to a restricted zone, employers should advise the employees of the potential health risks and provide the employee with the opportunity to decline. If the employee is required to travel to a restricted zone, it would be reasonable for the employer to pay the employee for any period of self-isolation required on return to Canada.

Employees should be warned against personal travel to countries subject to level 3 or 4 government health travel advisories. Employers should advise employees that if they choose to travel to a country with such travel restrictions, they will be required to self-isolate for at least 14 days on return to Canada and will not be paid if they are unable to work remotely. Given that the list of restricted countries is subject to change, employers and employees should consult COVID-19 travel advisories for up to date information.

Can employees be laid off?

In BC, the Employment Standards Act provides for a period of temporary lay-off of up to 13 weeks in a 20-week period. The Alberta Employment Standards Code provides for a period of temporary lay-off of up to 60 days within a 120-day period upon provision of written notice. However, at least in BC, to lay-off an employee without triggering notice or severance obligations, the employer has to be able to rely on a lay-off provision in the employment agreement or an implied term e.g. due to past practice or industry norm. For unionized workplaces, collective agreements will have lay-off provisions.

In British Columbia and Alberta, in circumstances where an employer is forced to close its operations by government order or due to some other unforeseen event, exemptions to the length of a temporary layoff and any requirement to provide individual or group termination notice may exist. However, before implementing any mass layoff in these circumstances, you should consult with us.

Laid-off employees will be eligible to apply for EI regular benefits.

What are occupational health and safety issues?

Employers have a general duty under workers compensation legislation to ensure the health and safety of all workers working for that employer and to make workers aware of health or safety hazards to which they are likely to be exposed by their work. At present, we are not aware of any special precautions for COVID-19 being required by occupational health and safety authorities but employers should continue to check with their provincial workers compensation authority for possible new precautions. Usual health and safety procedures continue, including workplace sanitizing and hygiene. The employer should remind employees of the heightened need to utilize measures used to prevent influenza including wash hands, avoid touching, avoid contact with people that are sick, and clean and disinfect objects and surfaces.

Employees have the right under occupational health and safety legislation to refuse unsafe work. Should an employee refuse to work due to COVID-19, the employer should follow the required procedures under the applicable legislation.

Are employees eligible for workers’ compensation benefits for COVID-19 related absences?

With respect to possible claims for wage loss benefits due to COVID-19, workers’ compensation benefits are generally only available if the injury or illness “arose out of, and in the course of, employment”. Both parts of this test must be satisfied. In other words, the illness has to not only have been contracted at work but also been caused by the work. Although not known at this time, it is likely that workers compensation agencies will take a similar approach to COVID-19 as to other viruses such as influenza. Generally speaking, compensation is usually restricted to health professionals and other workplaces where there is an established higher risk because of the type of work being undertaken.

Should employees be notified of a possible exposure to COVID-19?

The individual circumstances would need to be considered as to whether all or some employees should be notified of a possible exposure to COVID-19 including the nature of the exposure and the contact with all or some persons in the workplace. Any such notification would need to limit any unnecessary disclosure of personal information about the employee.

Under BC public health regulations, if an employer is advised by a medical health officer that a worker or any other person who has been present at the workplace has been infected with COVID-19, the employer must, if requested by the medical health officer, (a) report the contact information, if known, of each person who may have been exposed to the infected person, and (b) make the report to a medical health officer in the form and manner required by the medical health officer. The employer may also be required to assist the health authorities in any other manner as required.

Under Alberta public health regulations, workplaces are considered public places. Where a medical health officer knows or has reason to believe that a person infected with COVID-19 has frequented a public place, or that a public place may be contaminated with COVID-19, the medical health officer may require the person in charge of the public place to provide any information relating to the public place, the person and COVID-19 that is specified in the notice.

Employers should remain sensitive of the privacy rights of employees. In the absence of directions from a medical health officer, workplace communications probably don’t require identification of or other details about individuals who are self-isolating or have otherwise been asked to remain home. While the absence of an employee will be readily apparent to some others in the workplace in various situations, employers should have a reasonable basis to do so before disclosing personal information.

Human rights considerations

Employers should be mindful that human rights legislation prohibits discrimination against persons with a disability or perceived to have a disability. Whether COVID-19 meets the definition of “disability” will depend on the jurisdiction and the particular circumstances of any given case. Race and place of origin discrimination is also prohibited. In this respect, differential treatment of employees due to a perception that they may have COVID-19 or been exposed to the virus, or differential treatment of employees due to their race or place of origin may be a violation of human rights legislation unless the employer can establish bona fide reasons for such differential treatment. 

NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees.