As your business is creating a plan for addressing the current novel Coronavirus outbreak and taking preventative measures, it is important to understand your responsibilities and obligations.
Duty of Care
Businesses owe their employees a duty of care to ensure a safe working environment. You should be aware of the risks within your workplace and take appropriate measures to control that risk. These measures may include:
- allowing employees to work from home where available;
- allowing employees to work from alternate locations;
- limiting visitors to the workplace; and
- increasing the use of teleconference and video conferencing for clients.
As things develop, continue to communicate with your employees about the proactive steps your business is taking to protect them.
Employees who are unwell may be required to take sick leave. There is no requirement to provide paid sick leave in B.C.; however, if the employee has a written employment contract, it will usually outline any entitlement to sick pay.
If your business has a policy to request a standard medical certification for paid or unpaid sick leave, you should consider a loosening of this requirement.
Leaves of Absence
The Employment Standards Act does provide for a number of unpaid leaves of absence which may impact your employees; including those needing:
- compassionate care leave;
- family responsibility leave; and
- critical illness leave.
If an employee goes off on leave, you should be aware that the services of that employee are deemed to be continuous for the purposes of calculating annual vacation entitlement, and any pension, medical, or other benefits plan.
Layoffs and Terminations
Ultimately, layoffs and terminations will be unavoidable in many industries as certain measures are taken to contain the spread of the Coronavirus. If your business is in the position of having to layoff employees, you are entitled to provide working notice. However, given the circumstances it is unlikely that will be practical. As a result, severance will be payable to those employees, even if the layoff is temporary. The exception would be if your business is an industry where temporary layoffs are common, or if the employee has a written employment contract that includes the right to temporary layoffs. Regardless, the longest “temporary layoff” under the Employment Standards Act is 13 weeks, after which severance must be paid no matter what the terms of the employment agreement.
The Employment Standards Act sets the minimum notice period or severance payable. The range is from zero for workers who have been employed less than three months, to eight weeks for those with eight years or more of employment. Depending on your business, it may be important to note that there are higher notice requirements for group terminations of 50 workers or more.
While the Employment Standards Act sets out the minimum, a written employment contract may also include provisions for notice/severance on termination. However, these terms can be found invalid, and any employment contract should be carefully reviewed before such termination provisions are relied upon.
If there is no valid employment contract, then additional notice/severance may be applicable under the common law. The amount is determined based on the worker’s age, length of service, nature of their job and availability of alternative employment. The financial circumstances of the business are not considered in this determination, and in the event of an extreme industry downturn, there may be more notice or severance owed due to the difficulty the employee will have in finding alternative employment.
The key takeaway is for businesses to behave proportionately, reasonably, and consistently. Being proactive now to ensure your business is taking all of the necessary factors into consideration will save you going forward.
These tips are intended for employees who fall within the Employment Standards Act. If you are dealing with federal workers or unionized employees, it is important to note that they will be subject to different rules and considerations.
If you have any questions about any of the factors outlined, or any other employment law questions, employment lawyers at Lindsay Kenney are here to help you.
Employment Law Group
Lindsay Kenney LLP – Langley Office