Layoffs, Working Remotely and School Closures as a Result of COVID-19
Our previous update provided practical tips that employers can take in the workplace to meet their occupational health and safety requirements. It also discussed government recommendations respecting non-essential travel and self-imposed quarantines. That article can be accessed here. Our governments have made several directives and recommendations since our previous article which we address below. This article also canvasses issues such as school closures, layoffs resulting from COVID-19, working remotely and bans on large public gatherings.
The British Columbia government announced that it is suspending all schools in the province until further notice. As many students are not old enough to remain home without adult supervision, parents will be required to supervise their children from home. Although both the federal and provincial government have strongly encouraged employees to work remotely from home where possible, productivity will be impacted where parents are expected to work and mind their children at the same time. Employers should be very cautious about disciplining employees for productivity reasons if they are being asked to work from home and have childcare responsibilities. The Ontario government has proposed a bill that that provides protection for workers who need to provide care to a child due to a COVID-19 related school closure. A similar bill has not been proposed in British Columbia as of this writing.
Although the terms “layoff” and “termination” are sometimes used synonymously, they are separate concepts. A layoff is temporary. The employee is expected to come back to work following a brief hiatus. A termination of employment is final.
With respect to temporarily laying off employees, the British Columbia Employment Standards Act, provides that a temporary layoff occurs where an employee’s weekly working wages are reduced by 50%. A layoff is only permitted where:
- The layoff is part of an employment contract
- The layoff is a normal part of the industry; or
- The employee agrees to the layoff.
A temporary layoff is not indefinite. Temporary layoffs can be up to 13 weeks in a 20-week period. Any layoff in excess of that amount results in a termination of employment.
Temporary layoffs are unpaid unless a collective agreement, workplace policy or employment agreement states otherwise. However, employees who have been temporarily laid off are entitled to collect employment insurance benefits. An employer must issue a Record of Employment for employees who are temporarily laid off.
The permissibility of a layoff is going to differ in every workplace. Notwithstanding what is in the Employment Standards Act, a layoff – unless agreed to by the parties – may result in a constructive dismissal (i.e., termination of employment) at common law as employees generally have a right to work. Similarly, collective agreements may not permit a temporary layoff. Given the potential severance obligations, we strongly encourage employers to get legal advice if they intend to layoff a portion of their workforce.
Gatherings Limited to 50 or less Persons
The British Columbia Provincial Health Officer issued an order prohibiting gatherings of more than 50 people. The order expires on May 30, 2020 unless revised or extended.
Employers have been asked to put in place measures that will allow employees to work remotely. Working remotely does not mean vacation. Employees are required to work – albeit at home. Employers should consider the use of technology to enable meetings. For many employees, computer access and an internet connection will be enough to allow productive work from the home. Employers may want to consider having regularly scheduled check-in times to ensure that goals are still being met and to ensure that employees can ask for assistance where needed. Not all work can be performed safely from home however, and employers will want to ensure that steps are taken to prevent the disclosure of confidential information.
We will continue to update this blog as more information becomes available. In the interim, we encourage employers and employees to follow the instructions provided by our health authorities. Up to date information from the federal government can be accessed here and from the British Columbia government here.