COVID-19 Q & A

By Alfred Kempf
Categories: Blog, Employment Law

Employers and Employees are pondering their rights in light of the Corona virus.  We have set out some of the questions that might arise and our answer to same.

Q:    If I suspect an employee has contacted the virus can I require the employee to stay home or seek medical attention?

A:    Yes.  The Occupational Health and Safety Regulation requires employers to ensure the health and safety of its workers.  Given the novelty of the virus, reasonableness would prevail and suspicions should be investigated by asking the employee to be safely tested.

Q:  Will an employer be liable for wages for time lost by an employee suspected of having been exposed to the virus or suffering from the disease?

A:  The employer should not be liable to pay wages to an employee asked to not report to work if the belief that the employee has been exposed to the virus is reasonably held.  Similarly, an employer is not liable to pay wages to an employee who misses work because he or she has contracted the disease.

Q:  Is there any form of income assistance for employees being placed on leave for suspected exposure or because they have contracted the disease?

A:  Employees off work for more than 7 days would qualify for Employment Sickness benefits.  Group disability insurance may also be available after a qualification period.  These benefits would extend to those diagnosed with the disease.  It is doubtful that those merely exposed to the disease would qualify.

Q:   Are there human rights issued raised if an employer discriminates against employees exposed to the disease or diagnosed with it?

A:  A transitory disease is not protected under the BC Human Rights Code.  If the disease were to cause a permanent physical disability the Code may apply to such disability.

Q:  Can an employee refuse to work in circumstances to avoid exposure to the virus?

A:  It depends.    Employees have a right to refuse unsafe work under the Occupational Health and Safety Regulation. Employees must have reasonable cause to believe their health and safety is at risk. However, reasonableness should prevail.  The prudent course of action is to investigate the refusal and, if it is justified, identify ways to minimize risk. This may include permitting an employee to work from home.  Work travel to certain countries and/or regions should not be compelled. Refusal to work in a care home in which a resident has been diagnosed with the disease would likely not justify a refusal to work if the employer has made reasonable and recommended equipment and preventive clothing available to the employees eliminating the risk of infection.  There may be exceptions for employees who are particularly vulnerable to complications due to pre-existing conditions.

Q:  Must an employer pay wages for employees who are unable to work because of travel restrictions or an infection in the workplace which causes a temporary or permanent closure of the operation?

A:  Generally, no. However, employers may have sick leave policies that entitle employees to pay.

Q:  Would a lay-off triggered by effects of the disease trigger the right of an employee to claim constructive dismissal or severance pay?

A:  It depends on the legitimacy of the lay-off. A constructive dismissal occurs where an employer evinces an intention to no longer be bound by the employment contract. It is less likely that a constructive dismissal occurs when the lay-off is a necessary and rationale response to the virus. If the lay-off is overly conservative and not based on real risk or real decline in business, the answer is likely yes.  That said, the Employment Standards Act provides that a lay-off exceeding 13 weeks in a 17 week period will result in a termination of employment. In certain businesses the consequences of the disease may also result in the employment contract being frustrated meaning the employment contract would come to an end without the requirement to pay severance.  (i.e. tour guides in the hardest hit areas).

Q:  Is an employee entitled to work from home to reduce chances of exposure to the virus?

A:  An employee cannot unilaterally elect to work from home unless the contract of employment provides such discretion to the employee (few do).  It may however be reasonable in certain circumstances to allow employees to work from home.

Q:  Can an employee make a claim to WorkSafeBC if he or she becomes infected with the virus due to work exposure:

A:   Maybe, this is the test employed by WorkSafeBC:

  1. (Is) the nature of the employment created for the worker a risk of contracting a kind of disease to which the public at large is not normally exposed; or
  2. (Is) the nature of the employment created for the worker a risk of contracting the disease significantly greater than the ordinary exposure risk of the public at large. In this category, it would not be sufficient to show only that the worker meets more people than workers in other occupations, but it would be significant to show that in the particular employment the worker meets a much larger proportion of people with the particular disease than is found in the population at large.