New Concerns and New Responsibilities

COVID Sick Leave Provisions and Safety Plans

This article is the third in a series of three on vaccinations and employment law concerns.

In our first two blog posts in this series, we discussed vaccination policies and employee’s privacy rights. In this final installment, we will cover sick leave provisions and safety plans, which every employer is required to have in place.

In response to the COVID-19 pandemic, the province of BC implemented changes to the Employment Standards Act to provide room for pandemic-related leaves of absence for employees. This amendment gives employees the right to take a job-protected leave if they meet any of the five following conditions:

They are diagnosed with COVID-19 and are acting on advice from a medical practitioner;
They are in quarantine or self-isolation pursuant to a provincial order, an order made under the Quarantine Act, the guidelines of the British Columbia Centre for Disease Control, or the Public Health Agency of Canada;
They are providing care to a child or dependent adult, including because of the closure of a school or daycare or similar facility;
They have been directed by their employer not to return to work due to concerns about COVID-19 exposure; and/or
They are outside of BC and cannot return to the province because of border and/or travel restrictions.

It is important to note that this leave is unpaid. Employees may take a Covid-19-related leave for as long as one of these criteria apply. They are entitled to subsequent employment in the same position, or a comparable one, once their leave is over. Employers cannot request a medical note for this leave but can request reasonably sufficient proof that the employee is eligible for the duration of their leave. In cases involving high-risk or COVID-19 exposed employees, employers have the statutory right to refuse an employee’s request to return to work when the employer has safety concerns about the individual’s potential exposure to other employees.

Employers have a responsibility to ensure the health and safety of their workers. Pursuant to an order issued by the Provincial Health Officer on December 16, 2020, all employers are required to implement and enforce a COVID-19 safety plan. The safety plan must comply with the WorkSafe BC guidelines, and outline the policies and procedures an employer has in place to reduce COVID-19 transmission. Additionally, employers are required to provide daily health checks to their employees, and can refuse entry to the workplace if employees fail a health check or fail to properly perform the health check. Masks are mandatory in all indoor spaces in BC, except for people who are unable to wear masks. Employees who are able to wear a mask but choose not to as a matter of preference are not exempt. However, if an employee claims a mask exemption, employers should take them at their word. Proof is not required.

Employers who fail to properly implement and enforce their safety plan may face a claim for negligence if an employee subsequently becomes infected. If there is a workplace exposure, employers must notify anyone who had contact with the infected person.

COVID-19 has presented many new challenges for employers, as well as many new requirements and responsibilities that seem to change constantly. Employers should reach out to a lawyer to help them navigate through their questions and concerns and to make sure they are following the most recent COVID-19 guidelines and requirements. Any member of our Employment and Labour group would be happy to assist you with these issues.