The British Columbia Employment Standards Branch (“ESB”) and the British Columbia Human Rights Commissioner (“HRC”) have released recent guidance to employers in response to the COVID-19 pandemic.
1. Statement from the ESB
The BC ESB Interpretation Manual has been amended to clarify the exception to the obligation to provide individual and group termination pay pursuant to the Employment Standards Act (the “Act”) where it is impossible for work to be performed due to a change in circumstances that could not have been anticipated.
The addition to the policy interpretation states that:
If a business closure or staffing reduction is directly related to COVID-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception under the Act may apply to exclude employees from receiving compensation for length of service and/or group termination pay.
This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to COVID-19 or if the employee’s work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.
This policy addition confirms that a layoff may be allowed due to temporary frustration of the contract due to COVID-19, although this may not be the case where the work could have been performed in another manner including by the employee working from home. There will still be a question of whether the contract of employment is affected by the language of the Act. The policy interpretations are not binding on the Employment Standards Tribunal adjudicators.
2. Statement from the HRC
The HRC published “Policy Statement on Human Rights during the COVID-19 Pandemic” authored by its Commissioner, Kasari Govender (the “Policy Statement”), and “Frequently Asked Questions Regarding COVID-19” (“FAQ”). The statement makes clear that COVID-19 amounts to a disability, and child care obligations will need to be accommodated.
In the Policy Statement, Commissioner Govender writes:
In this time of rapidly changing circumstances, neither the Human Rights Tribunal nor the courts have had time to weigh in on whether COVID-19 amounts to a disability. However, in my view as BC’s Human Rights Commissioner, it does. The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold.
(Emphasis in original)
The Commissioner also indicates that COVID-19 may engage the protected ground of family status, indicating that parents with increased child care responsibilities due to closures of daycares and schools will need to be accommodated.
The Policy Statement contains the following recommendations directly to employers responding to COVID-19:
- Employers cannot make hiring, discipline, or firing decisions on the basis of whether a person has or appears to have COVID-19.
- Employers are required to accommodate a person who may have COVID-19, which means taking all necessary precautions to stop the spread of the virus in the workplace unless doing so would amount to undue hardship. This may include working from home arrangements, or providing sick leave.
- Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or public health officials have quarantined them or have advised them to self-isolate or stay home in connection with COVID-19.
- Employers cannot make hiring, discipline, or firing decisions on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as China or Italy.
- Employers must also accommodate employees who are considered particularly vulnerable to the virus, such as elderly or immune-compromised people. This means taking all necessary precautions to stop the spread of the virus in the workplace (such as extra cleaning) unless doing so would amount to undue hardship. Employers must provide flexible work arrangements to allow vulnerable workers to work from home or from safe spaces, unless doing so would amount to undue hardship.
- Employers may also need to accommodate employees with increased child care obligations due to the pandemic, or employees required to care for sick family members at home. Such accommodations may include allowing for flexible work hours, working from home, or taking paid leave time.
- Employers are not permitted to require sick notes from employees during this time.
- Employers with paid sick leave policies should apply them as needed.
- Employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason for why they cannot. If an employee is required to self-isolate, the employer is required to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework) unless the employee is unable to work due to illness.