COVID-19 FAQ for Employees

Can my employer temporarily lay me off?

Pursuant to the Employment Standards Act, an employer can temporarily lay off an employee for a period of up to 13 weeks without triggering the termination pay requirements in the Act.

However, at common law, an employer has no right to unilaterally alter the terms of employment, unless there is a written contract permitting the employer to do so. A temporary lay off is a significant change to the terms of employment. If your employer has laid you off due to a business slowdown during the pandemic, you may be able to treat the layoff as a breach of contract and claim severance. Depending on the nature of your work and the layoff, it may be advantageous to do so, although pursuing this option would likely close the door to future employment.

Recent amendments to the Employment Standards Act prohibit terminations where the employee takes leave for a COVID-19 related reason. Read about that here.

Can my employer send me home if they suspect I have COVID-19?

Yes. Employers have an obligation pursuant to the Workers Compensation Act to ensure a safe workplace for all employees. This includes taking measures to minimize exposure. As well, employers must follow all orders made by the Provincial Health Officer, which could require the employer to do so.

Where an employee is sent home for this reason, they are not entitled to be paid, but may be able to use sick days, vacation days, or may have a contractual right to be paid while off. As well, if the employee is able to carry out their work from home, the employee can expect to be paid for their work.

An employee who is sent home to reduce exposure to other employees cannot be terminated. Such a termination is prohibited by the recent amendments to the Employment Standards Act. Read about that here.

Can my employer reduce my hours or pay?

If an employer reduces your hours or pay without your agreement, this is considered a breach of the employment contract and may entitle you to treat the employment relationship as a terminated, and claim severance. Because the rules around calculating severance and claiming constructive dismissal are complex and apply, it is strongly recommended that an employee seek legal advice prior to taking this step.

In many cases, the employer and the employee may agree to a new working arrangement, but it is advisable that the new arrangement be put in writing.

Am I entitled to severance if I am let go?

Yes. In almost all causes where an employee is terminated without cause, the employee is entitled to severance. The Employment Standards Act provides the minimum amount of severance, but many employees are entitled to claim additional severance pursuant to the common law, which can often be significantly more. If you have a valid employment contract that specifies or limits the amount of severance, that will usually be the severance amount that is applied.

Can I be fired if the government orders my workplace to shut down?

If your employer is ordered to close and you are terminated, you may be entitled to bring a claim for severance. However, as severance claims are by their nature contractual, there may be defences in the law that apply to your claim. One of these is the doctrine of “frustration” which relieves the parties of their contractual obligations when an unforeseen event outside the control of both parties renders the contract impossible to perform. Whether this defence applies will vary from case to case.

Recent amendments to the Employment Standards Act provide some job protections for workers who are taking leave because of COVID-19. These provisions do not appear to cover a situation where the employer is forced to close because of a government order.

Can I apply for the 75% wage subsidy?

On March 27, 2020, the federal government announced a wage subsidy program which covers the 75% of employee wages for a period of three months. However, this program is only available to employers in certain circumstances, and as well, employers are not required to apply for this program in order to maintain their workforce.

Can my employer fire me for refusing to come to work during the COVID-19 pandemic?

Pursuant to the Workers Compensation Act, employees have a right to refuse unsafe work. Once that right is exercised, the employer is required to investigate and correct the situation. If the work refusal is maintained, the employer and employee can involve WorkSafeBC to resolve the matter. These matters are handled on a case by case basis. The right to refuse unsafe work would likely be engaged in situations where the employer creates an unreasonable risk of exposure. An employee cannot be terminated for exercising this right.

As well, the Employment Standards Act provides job protection for employees who are taking a leave because of certain COVID-19 situations, including for employees who are self-isolating, quarantined, or directed to stay home by an order of the public health officer. More on those protections here.

If I am sent home because of COVID-19, does my employer have to pay me?

This will vary based on the provisions in your employment contract, which may provide for sick days, vacation days, or other paid leaves. The Employment Standards Act does not provide for paid sick leave of any kind. Absent any contractual provisions covering sick days, an employer has no obligation to pay an employee who is sick or in self-isolation or quarantine.

Similarly, if you have been placed on a temporary leave or lay-off by your employer, they are not required to pay you. However, being placed on a temporary lay-off may qualify you to claim constructive dismissal - to treat the employment relationship as terminated, and claim severance.

Unless permitted by your contract, your employer cannot ask you to carry out any work while you are on a leave without paying you.

Do I have a right to work from home?

Employees do not have an absolute right to work from home during the pandemic, even if they are capable of doing so. The employer maintains the right to operate its business and manage its workforce as it sees fit.

However, as set out above, where the employer is placing the employee at unreasonable risk of exposure, this could engage the right to refuse unsafe work. As well, if the employee is entitled to a protected COVID leave pursuant to the Employment Standards Act, it may be advantageous for both employer and employee to arrange work to be performed by home, rather than have the employee take an unpaid leave.

My child’s school or daycare is closed and I have to stay home to watch my kids.  Can my employer fire me for staying home?

No. The recent amendments to the Employment Standards Act prohibit termination of an employee who is staying home to take care of a child because their daycare or school has been ordered to close, so long as they are child’s parent, guardian, or otherwise responsible for their day-to-day care.

As well, the Human Rights Code prohibits discrimination on the basis of “family status”. This has been interpreted by the Human Rights Tribunal and our courts to require employers to accommodate certain family responsibilities to the point of undue hardship. An employer who terminates an employee for attending to their childcare needs without exploring the possibility of workplace accommodation will likely be found by the Tribunal to have violated the Code.

The government has declared some businesses to be “essential services” - what does this mean?

On March 26, 2020, the BC Government announced a list of “essential services” in relation to the COVID-19 pandemic. This has a different meaning than in the unionized labour law context, where certain sectors deemed as “essential services” can be ordered to provide basic levels of service despite job actions.

In British Columbia, the public health officer (in our case, the esteemed Dr. Bonnie Henry), has the authority to issue orders once a public health emergency has been declared pursuant to the Public Health Act. BC declared a public health emergency on March 17, 2020. A list of orders and guidelines issued by Dr. Henry can be found here.

As of the date of this FAQ (April 5, 2020), the public health officer has not made any orders requiring non-essential businesses to close (except for those orders made to date in respect of bars, restaurants, and personal service providers), although orders of this nature have been made in Ontario, and Washington State, for example.

Apart from the restrictions issued in respect of certain sectors, there is currently no order prohibiting non-essential businesses to close. According to the government’s website, essential businesses are those that encouraged by the government to stay open during the pandemic. However, both non-essential and essential businesses can remain open so long as they are able to follow the guidelines and orders set by the provincial health officer.

Further questions?

If you have any other general questions about employment law and COVID-19, please send me an email at pedersen@victorialaw.ca, and I will do my best to publish a response here.

If you have specific questions about your legal situation, consider booking a phone or video-call consulatation with me. Information regarding bookings can be found here.