Tackling Top Employment Issues in 2020

"[Employers] are going to need to know how to respond to requests [for accommodations and absences] and particularly ensure that they are responding to them appropriately, fairly and consistently." - Robert Sider

Guest(s):
     

 Rob Sider      Cory Sully

^{Quick Tip: To skip ahead to different topics in this podcast, hover over the media player and click the bullet point button:}                                                                                             

Don't have time to listen to the full podcast? Here's what this episode covered:

• What types of advice have you been asked to give most frequently as a result of COVID? - 00:01:18
• How should employers be approaching requests for absences by parents if, for example, their child is having to quarantine? - 00:03:32
• Is there an aspect of this that is going to engage human rights legislation? - 00:06:21
• What temporary changes were made to the BC Employment Standards Act and what are the effects of the expiry? - 00:07:06
• What are some considerations that employers are taking into account when they're making the decision to move to a remote workforce? - 00:10:03

Transcript

Mark Fancourt-Smith 0:07
Welcome to Lawson Lundell’s new podcast series LawsonInsight. My name is Mark Fancourt-Smith, I'm a partner in the commercial litigation group at Lawson Lundell in the Vancouver office, specializing in technology and intellectual property litigation.

Alix Stoicheff 0:20
And I'm Alixandra Stoicheff, a litigation and dispute resolution associate with a focus on civil litigation and regulatory law and I'm based in the Calgary office. Thank you for joining us on this podcast brought to you by Lawson Lundell. Over the next few episodes, we will be sitting down with lawyers from across the firm's practice groups to break down the current legal issues and to give you and your business's key information.

Mark Fancourt-Smith 0:42
On this Incidentally, our very first episode, we'll be speaking with labour employment and human rights lawyers Rob Sider and Cory Sully, both of whom are in our Vancouver office as well, about a few topical employment issues and what's been a very unusual 2020 and what you need to know about them. The Labour and Employment group will also be hosting a webinar this Wednesday, September 23, where they will dig deeper into some of the topics we are discussing today. You can register for the webinar through our website, www.lawsonlundell.com.

Mark Fancourt-Smith 1:12
Welcome to the podcast Cory and Rob! Thank you very much for being here!

Rob Sider 1:15
Thank you for letting us join you.

Cory Sully 1:17
Thank you.

Mark Fancourt-Smith 1:18
The first question I want to ask it's been a very unusual 2020. But what types of advice Have you been asked to give most frequently as a result of COVID?

Rob Sider 1:27
Most employers are dealing with the issue of how do they get through this period of time and still maintain their workforce? Probably the most important one is how to deal with laying off your employees and preferably laying them off in a temporary fashion. So, they want to be able to maintain their employees. But, they can't - they don't have enough work for them right now. So one of the big issues is can you temporarily lay off your employees for how long can you lay them off? And what are the possible impacts of that temporary layoff? And of course, in each province, there are different answers to that, because each province has different statutory requirements for temporary layoffs. So that's the first big one. The second one is sort of a more severe response to COVID. And that deals with employers who are having to terminate employment relationships with their employees. So we get a lot of questions about, you know, how do I calculate severance? Can I provide working notice, if I don't provide working notice? What should I provide instead of working notice? We get questions about the difference between individual and group notice requirements under the various Employment Standards and labour standards legislation in the various provinces throughout Canada. But these all go to how much is it going to cost the employer to permanently terminate employment relationships with employees? Then, there is also the question now at what about getting your employees back to work that you've laid off? What is the impact of their possible fear of coming back to work because of COVID? How do you convince them to come back to work when they are receiving benefits from the government that might, in fact, in some cases, be more than what you're paying them at work? So those are other issues that come up? And then finally, I guess one of the big issues is, what about employees who request accommodation? What about employees who want to work from home because of childcare issues, or because they're living with someone who's vulnerable to COVID-19, or the effects of COVID-19?

Alix Stoicheff 3:32
One of the ones that you mentioned there that with childcare issues, and parents sort of working to balance their work responsibilities, along with their parenting responsibilities. We're recording this in early September, and school is starting to get back into session across the country. And this may mean that there is a spike in cases and at the same time, we know that many workplaces as you mentioned, are starting to have employees coming back to the office to work. And so how should employers be approaching requests for absences by parents if, for example, their child is having to quarantine because of a positive test from another child in the class or a similar exposure at school?

Rob Sider 4:08
So this is something that employers are going to need to prepare for. They're going to need to know how to respond to the requests and particularly ensure that they are responding to them appropriately, fairly and consistently. For example, if the child is required to quarantine due due to exposure to a positive classmate, then the answer is probably clear and British Columbia has covid 19 related leaves under their employment standards, legislation and most other provinces have similar sorts of leaves, that will entitle an employee to leave where there is a potential quarantine issue now, in British Columbia. It's a it's an unpaid leave and the employee would be entitled to leave for as long as the situation continues to apply. To that employee, employers are typically entitled to proof that the employee is entitled to leave, but they can't necessarily request a medical note for that. And some of the results of this, of course, is that just like any other job protected leave, like a pregnancy leave or a parental leave. But similarly, same sort of approach would occur where a daycare or school is closed, because of COVID-19. outbreak. In those circumstances, once again, this is a covert protected leave. And the employer would be required to provide a leave to the employee in those circumstances. Where there is perhaps a less clear answer is where parents asked to work from home or for a leave of absence, because they've chosen to keep their child at home, even though in school learning is available and the child has not been exposed to or diagnosed with COVID-19. And in those circumstances, it's going to be important to obtain sufficient information from the employee to determine if the duty to accommodate applies, and if so then engage in the accommodation process with the employee. And if the employee is represented by a union with the union representative, those are sort of some of the issues that are going to come up I think, in the next four weeks with all the children returning to school.

Mark Fancourt-Smith 6:21
One thing that occurs to me as you're saying this, is there an aspect of this that is going to engage human rights legislation?

Rob Sider 6:27
Yeah, Mark, there absolutely is, under human rights legislation, there is an obligation to not discriminate on the basis of family status. And there is a duty to accommodate those who have requirements because of their family status. So this duty to accommodate in the aspect of children going back to school may require employers to allow employees to take an unpaid leave of absence, or to be flexible with how the employee works, including possibly allowing employees to work from home where possible.

Alix Stoicheff 7:06
Cory, one thing that Rob mentioned at the outset of our conversation here today was the issue of temporary layoffs. And I understand that there were changes that were temporary, regarding layoffs under the BC Employment Standards Act, and that those have recently expired. And so I'm wondering if you can tell us what those temporary changes were and what the effect of the expiry is,

Cory Sully 7:26
Before the COVID pandemic, in BC, a temporary layoff could not exceed 13 weeks in a period of 20 consecutive weeks. And it soon became clear that this pandemic was going to last a lot longer than that there was pressure on the government to amend the Employment Standards legislation to extend that layoff period. And so in early May, it was extended to 16 weeks in the 20 week period if the temporary layoff was related to the COVID-19 pandemic. And then again in late June, as this continued, there was a further extension to 24 weeks, and the government made it clear that this extension was only going to be temporary. And so the layoffs were either going to last 24 weeks or until August 30, whichever happened earlier. And so mid August, many employers in BC were faced with the situation. Can we recall employees at this time before the end of the layoff period? Or what do we do next? Do we do we have to terminate their employment and so we were getting a lot of questions at that time, the government then announced that employers could apply for a variance from the Employment Standards rules around layoffs, which essentially is approval to lay off employees for longer than that 24 week period or beyond August 30. And those applications had to be made by August 25. And we've recently learned from a government announcement that they've approved more than 500 applications across various industries, employers of varying sizes. And so obviously, there are many employees who remain on temporary layoff in BC. And then employers who could not recall employees, and who did not apply for a variance are then faced with the fact that these employees are deemed to have automatically been terminated. And so that raises questions of well, what are their entitlements now? And so there are lots of things that employers are having to deal with now is this layoff period has expired, that a layoff can last, if it's related to COVID for up to 180 consecutive days. And there is an ability to extend without applying for a variance if you get the employees agreement and you continue to pay wages pension or other sort of benefits. So the circumstances do vary from province to province and we always recommend that you seek legal advice, obviously in the jurisdictions in question. The

Mark Fancourt-Smith 10:03
next thing I want to ask you about is something that we've all had to do. And that's working remotely. And when we, whenever when first started doing it, some were saying this is the way of the future. Some are saying this must end as soon as possible. But it certainly seems like it's here for the time being, looking ahead a little bit and perhaps optimistically as to when the pandemic recedes a bit. And when it's less of an absolute necessity, is working remotely or having part of the workforce working remotely here to stay. And what are some considerations that employers are taking into account when they're making that decision? Cory? Perhaps I can direct this one to you.

Cory Sully 10:39
Yeah, so I agree with you. I think it is, you know, here to stay, at least in some degree. Lawson Lundell. Our office is part time remote. And we're getting many questions from clients about how to transition to a remote workplace, either entirely or just partially, you know, one of the things that we've recommended our clients think about is implementing a remote work policy. And that can help clearly communicate expectations to employees who have never worked from home or worked outside of an office environment before. And to make it clear what the expectations are with respect to things, for example, like timekeeping, how do employees get approval for overtime? When, when working from home? How are you as an employer, keeping track of your employees hours? How are you monitoring their breaks and their productivity? Another thing that can be addressed in this type of policy is confidentiality and, and how to deal with sensitive company information, potentially client information that employees are now taking into their homes, and their homes may have family members and others who, you know, are not employees who may see that information. If you don't, you know, give employees some guidance on how to properly you know, safeguard that confidential information, while in the home office. Remote working policy can include things like what sort of company records can be brought home? What steps do you expect employees to take to secure that confidential information? What if they're having a zoom call or a telephone call with a client and discussing sensitive information, you can direct them, you know, go in a private room, make sure that no one can can overhear your conversation in the home, you know, make sure that you you if you have any hard copies of confidential materials, you know, secure them. The other thing that we're getting lots of questions on from clients in this transition to the remote workplace is Occupational Health and Safety obligations. And so WorkSafe bc actually published some guidance in March at the beginning of this reminding employers of those obligations and recommending that all employers have at least a basic health and safety policy for working at home that at a minimum, has employees conducting an assessment of their home workplace, and if there are any hazards, reporting that to their supervisor or to their manager, what if they get injured at work? How, while working from home? How do they report that? What are the protocols? Any ergonomic considerations in setting up a home office? What about any training needed in this transition? employers need to think about that.

Alix Stoicheff 13:26
So many of the issues that we have spoken about here today are no doubt ones that will continue to evolve over the coming days, weeks and months. And I know that certainly for a few of these, we've only really hit the sort of tip of the iceberg in terms of discussing them here today. If someone did want a more in depth look, or a more in depth discussion about some of these issues and others, I understand that there is an upcoming seminar that rob you are presenting at Can you tell us a little bit more about what's going to happen at that seminar next week?

Rob Sider 13:54
Yes, Alix, we will be doing a webinar Wednesday, September the 23rd. That will be going from 9am to 10am. Pacific time. And then we'll have a period of for questions from 10am to 1030. And I'll be joined by my colleagues we to the Hill, Deborah Cushing and Jim Boyle. And we'll be discussing in a little bit more depth, some of these issues that have arisen during the covid and pandemic. And then just for the fun of it, we'll have an opportunity to talk about a few recent court cases and Labor Board decisions that might affect our clients operations. So it should be a great webinar. And certainly if there are any questions that you might have, we'll have an opportunity for you to ask those. So, we certainly enjoy having any of our clients or others who may wish to join us next Wednesday, September the 23rd at 9:00 AM Pacific Time.

Mark Fancourt-Smith 14:46
Rob, Cory, thanks very much for being on the podcast.

Rob Sider & Cory Sully 14:51
Thank you. Thanks for having us.

Mark Fancourt-Smith 14:53
Thank you for joining us at LawsonInsight. If you want to learn more about the top employment issues in 2020, consider registering for Lawson Lundell’s webinar taking place this Wednesday, September 23, at 9:00 AM Pacific Time, our labour and employment group will be going into more detail on some of the issues we discussed today, including mental health issues, hiring practices, and concerns about discrimination in the workplace.

Alix Stoicheff 15:15
And that's a wrap on our very first episode! Thanks very much to Rob Sider and to Cory Sully for joining us here today. For more information, please visit our website at www.lawsonlundell.com and subscribe to the podcast RSS feed. You can also stay up to date by connecting with us on social media using the handle at Lawson Lundell. Thanks so much for listening and stay well.

About LawsonInsight

Hosted by partner Mark Fancourt-Smith and associate Alix Stoicheff, LawsonInsight is a look inside the legal mind. If you would like us to cover a particular topic, please email your requests to inquiries@lawsonlundell.com 

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