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COVID-19: Canadian Employment Law Reaction

April 23, 2020

Alexander Holburn Labour + Employment Practice Group

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The COVID-19 outbreak has led to unprecedented challenges for Canadian employers.  Businesses that operate in Canada face new requirements under provincial and federal laws, including from employment standards, occupational health and safety, and travel restrictions. Further, these requirements have been changing daily as Canadian legislators enact new laws and benefit programs in response to COVID-19.

Businesses have been navigating these requirements to reduce wage costs, continue operations and avoid exposure to future legal claims. In this article, we outline some common questions relating to steps businesses in Canada have been taking.

1. What are the general duties of employers at the workplace during the COVID-19 outbreak?

The general duties of employers have focussed on health and safety compliance, leaves of absence, and contractual and statutory obligations related to layoff or termination of employment.  The statutory obligations have been changing in each jurisdiction as legislative bodies have acted with unprecedented speed to enact changes to employment standards, and offer benefits to businesses and employees affected by the COVID-19 outbreak.  Benefits have been made available to contractors and employees, as well as large and small businesses to seek to avoid or weather the economic effects of the outbreak.  Employers started with simple policies and resources for proper sanitation including proper handwashing and social distancing. The employee exhibiting signs of illness was told to go home when such flu like symptoms may have been accepted in the workplace in the past.  This has expanded to control of numbers of staff, more significant social distancing, restriction of any symptomatic employees in the workplace, and enforcement of restrictions by regulators through fines and business closures.

The Canadian Centre for Occupational Health and Safety developed a number of guides for good health and safety practices for employers and employees in a range of occupations and industries.

Employers have addressed requirements to advise employees of any risk of exposure to COVID-19 in the workplace, along with more extreme measures, including office closure, if COVID-19 has entered the workplace.

2. Do employers need to provide personal protective equipment (PPE) to employees?

The need for PPE has been considered by workplace.  The healthcare sector has been the focal point for PPE, and sourcing the needed resources.  Businesses continuing to operate such as grocery stores have installed shields, increased cleaning and limited numbers of patrons in-store.  Health Canada recommends that personal protective equipment be used on the basis of risk exposure and in compliance with public health and occupational health and safety guidelines for COVID-19.

Health Canada has recently developed a “PPE Guidance” guide for specific workplaces.

3. Can employers ask an employee to not come into work?

Provinces have legislated the closure of workplaces that are not deemed essential, and forbid gatherings of people.  The number of persons allowed to be in a workplace has also been limited (50 in British Columbia), and requires social distancing measures and other safe work practices to be in place.

For those employers allowed to continue to operate as essential services (the list is broad, and includes law firms), steps are required to be taken to ensure compliance with statutory occupational health and safety obligations to ensure a safe workplace.

1. Steps mandated to be taken by employers include: Ensuring that safe work practices are in place at the workplace including social distancing, hand washing and non-attendance when experiencing symptoms of illness.
2. Requiring an employee that has come in direct contact with a person who has tested positive with COVID-19 to not attend work and to self- isolate for a period of time set at 14 days.
3. Removing from the workplace an employee showing symptoms which could be related to COVID-19, such as a sore throat, fever, sneezing, or coughing.
4. Treating an employee who has visited a high risk location (for example, a place with an outbreak of positive tests) the same as an employee in direct contact with a person testing positive, by ensuring the person does not attend at work and self isolates for a period of time.
5. For employees travelling internationally (difficult to do now), to stay at home for 14 days upon returning. Employers have been taking steps to accommodate the employee by facilitating the employee to work from home where possible.

4. Can an employee refuse to come into work?

It is recognized that employees have the right to refuse ‘unsafe work’. This is arising where an employee has a concern regarding exposure to COVID-19 through attendance at work or at a job site.

Employers are obligated to provide a safe workplace. When faced with a concern raised by an employee, the employer is required to investigate any health and safety concerns brought forward by an employee and implement any changes necessary to ensure a safe workplace. Provincial Occupational Health and Safety legislation across Canada prohibits employers from disciplining employees for reporting a safety concern for obvious reasons. However, where the statutory process is followed, and an officer is involved where required, and the workplace or job function is deemed safe and in compliance, the employer may be entitled to discipline the employee for refusing to attend at work.

5. What if an employee has tested positive for COVID-19?

A great concern to an employer continuing to operate arises where an employee tests positive.  This has led employers to close offices, or plants, and for those that have failed to do so to risk liability and regulatory sanctions.  At a minimum, employers will have to notify employees and others who may have been exposed, and to disinfect the workplace.

An employee testing positive has been instructed to self-isolate at home and is prohibited from attending the office. Generally, this employee is entitled to statutory leave which in most provinces is unpaid, and is only paid for 3 days federally.  Benefits may make the leave paid.  Also, where the exposure has occurred at work, a claim for workers compensation benefits may be made.

Privacy and personal information consideration arise, and employers should ensure they are making reasonable efforts, as much as possible in the circumstances, to protect the identity of an employee who has contracted COVID-19 or to only disclose as necessary.

An employer may also need to require other employees who came in contact with that individual to self-isolate at home for at least a 14-day period.

Depending on the circumstances of the situation, occupational health and safety legislation may require the employer to temporarily close their office space for sanitation.

6. Do employers need to pay employees if the office is shut down due to COVID-19?

Businesses have been attempting to have employees operate from home offices.  Those businesses that cannot operate remotely have resulted in employee layoffs usually on a temporary basis.  Employees are expected to apply for government benefits where this is the case.

7. Can employers temporarily lay off their employees?

The COVID-19 outbreak and resulting business disruption has led many employers to seek to reduce wage costs but to do so only on a temporary basis.  For many employers, Q1 2020 was a period of full employment and the pivot to staff reduction has been a shock.

For Canadian jurisdictions, most non-union employment agreements do not allow for the right to temporarily layoff staff.  By contrast, the employment standards legislation does allow for temporary layoff but such terms do not override contractual terms.  The Province of Quebec is slightly different as temporary layoff may not lead to a claim by an employee where the layoff does not exceed six months.  Added to this confusion has been the fact that the COVID-19 benefits offered by the Federal Government to all and by some Provinces under various plans require employees to be laid off to receive the temporary benefits.

As a result, employers have been laying off employees on a temporary basis with or without employee agreement with the expectation that the employee will receive government benefits (which have been paid in record time), and be recalled to work in short order and before the temporary layoff is deemed permanent giving rise to statutory termination pay obligations (eg. for BC and Ontario 12 weeks).  At least one jurisdiction requires advance notice of temporary layoff of 1 to 2 weeks.

Of interest are the many articles by lawyers acting for employees stating that temporary layoff is a constructive dismissal and gives the employee a right to claim wrongful dismissal damages which in Canada will be based on contractual express or implied terms and can amount to several months of earnings subject to mitigation arguments.  Whether employees will make such claims is yet to be seen.  The receipt of benefits and the continuation of insurance coverages may weigh against such claims, along with arguments that the layoff was due to an unforeseeable event that made continued employment impossible to perform on a temporary basis. Employers have been continuing employee benefits during the temporary layoff period to assist the employee and maintain the employment relationship.

8. What are the requirements for recall from a temporary layoff?

Employers must recall a temporarily laid off employee to work within the statutory timeline set out in the applicable employment standards legislation. If the layoff exceeds the statutory timeline, the temporary layoff will be considered a permanent termination of the employee.  Where more than a certain number of employees are terminated in the applicable jurisdiction, then group notice obligations will apply under the legislation.  For example, in BC this is more than 50 employees at a single location in a 2 month period for obligations to be triggered.  Canadian common law termination pay obligations will also arise which can be significant depending on the terms of employment.

Employers to unionized employees must comply with any requirements of recall as stipulated in the collective agreement. Recall provisions may be based on seniority or other factors.

9. How is seniority/priority considered for temporary layoff and for recall?

There is no requirement to consider seniority for non-union employees for either temporary layoff or in recalling employees from layoff.  However, as noted employees not recalled to their former position may choose to claim constructive or wrongful dismissal. Employers will also need to be wary of potential human rights claims for discrimination where age or family status is seen as a factor. As many schools have remained closed, child care obligations will need to be considered in a new light.  Prior to the COVID-19 outbreak, child care obligations were rarely viewed as a need requiring accommodation.

For unionized employees, collective agreements will require that recall be based on seniority subject to the language of the specific agreement which may also have other requirements such as skill and ability.

10. How are health and welfare benefits affected by temporary layoff?

As noted, most employers are continuing benefits coverages during a temporary layoff.  Where the employee contributed to premiums, the employer has needed to provide for contribution or make this up during the layoff.  Employers have been advised to seek input from the insurer to ensure that coverage can continue during the layoff period.

For employees on statutory leave including new COVID-19 leaves, the statutory requirement is to continue coverages on the same terms. Payment of health and welfare benefits to employees in some jurisdictions may allow an employer to extend the period for temporary layoff. For example, in Ontario and federally, the period of temporary layoff can be extended if the employer continues to make certain types of stipulated benefits.

About the Authors

Alexander Holburn LLP is a full service law firm in Canada with offices in Vancouver, British Columbia and Toronto, Ontario. The members of the Labour and Employment Group assist businesses operating in Canada with Canadian employment requirements.