Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals.  On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022.    Vaccination will still be required for health care workers practicing in certain settings. 

 

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic.  This time, the change affects employees and employers working in regulated health care professions.  

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college.   According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.  

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out.  As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave. 

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle.  That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine.  There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information.   We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations.  Here are the top three things that those working in a regulated health care profession should know:

 

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code.  Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body. 

 

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care.  This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges.  These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status. 

 

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently.   This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated.  There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Workplace investigations under the Canada Labour Code

Federally-regulated employers (which include banks, airlines, transportation and telecommunication companies amongst others) had to adjust to new ways of dealing with harassment, bullying, discrimination and workplace violence allegations as of January 1, 2021, with the enactment of the Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code. 

Federally-regulated employers have always had an obligation to investigate complaints, but there are some new and challenging requirements of the 2021 Regulation. These include:

1. Prescribed timelines.

These timelines are not too tight, but having to keep an eye on them is an adjustment. For instance, acknowledging receipt of the concerns within 7 days, starting the investigation within 45 days, keeping the parties informed of the status of the investigation with monthly updates, and completing the investigation within a year. The kicker is, the one year includes fully implementing any recommendations from an investigator’s report. Depending on how detailed those recommendations are, and the size of the workforce or the amount of people involved, one year may be a tight deadline.

2. Representation.

Non-unionized employers will have to remember to inform the parties that they may be represented through the investigation process, and not panic if the respondent brings legal counsel to the interview.

3. Expertise.

If you are investigating, you must be an expert. HR folks take note. The Regulations require you to be trained in investigative techniques, and that you know the law, both the Canada Labour Code and the Canadian Human Rights Act.

4. Appointment process.

Who gets to investigate is now subject to approval by the policy committee in your organization, or by the health and safety representative (referred to by the Regulation as the “Applicable Partner”). You can develop a list of investigator names and have that list approved by the Applicable Partner, so all your internal investigations people can continue to do their job as they were before. If you don’t create that list, the Regulations give the complainant and the respondent the prerogative of choosing who investigates, though they must agree on a name. From a practical perspective, this last option can be difficult to implement. These are two people who no longer see eye to eye, and it is unlikely they will agree on the issue of appointing an investigator. If the parties can’t agree, the government can provide an investigator from their own list of experts.  

5. Conciliation.

You have to offer the parties an alternative to a formal investigation. The Regulation speaks of resolution via “conciliation”. The term is not defined by the Regulation, though is generally understood to mean a way of resolving a dispute with the assistance of a third party. Some employers are wondering what exactly is expected, and what the costs would be to hire external conciliators or train their own HR on conciliation techniques. When the allegations are related to sexual harassment, it is important to carefully consider how an offer of conciliation will made, what the format of that conciliation would be, and how it could be triggering or re-traumatizing for the complainant.

6. Former employees can bring complaints too.

They have 3 months to do so after the end of their employment. However, employers need to remember that their obligations to investigate concerns do not arise only under the Canada Labour Code. There is the possibility of liability under the Canadian Human Rights Act for not investigating, even if the employee is no longer with the organization, or has left longer than 3 months ago.

7. The content of the investigation report is now prescribed.

The report has to mention the circumstances in the workplace that contributed to the harassment and make recommendations on how to prevent similar occurrences (so investigators have to put their minds to systemic and workplace culture issues). Reports must not reveal the identity of the parties and a copy must be provided to both the complainant and the respondent, as well as to the Applicable Partner. Investigators need to be very cautious in their writing of the report. Sometimes the most careful of redactions can still reveal enough information that any of the recipients could piece together on who did what to whom and when and who testified against them. Describing titles, relationships or departments/locations in the report may reveal the identity of the parties. The employer must keep a copy of the report for a period of 10 years, which is longer than the regular 7-year period for business records, so make sure you make the necessary arrangements to avoid premature destruction.

8. Government reporting.

If you were already keeping solid records of all the concerns brought forward by employees, or your HR management system already provides you with case management and fulsome data in relation to concerns, congratulations. You may be halfway there. In addition to the already existing requirement to submit annual reports on all hazardous occurrences in the workplace, the government is now looking for the following things by March of each year:

  • the total number of occurrences,
  • the number of occurrences that were related to sexual harassment and violence and non-sexual harassment and violence,
  • the number of occurrences that resulted in the death of an employee,
  • if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act,
  • the locations where the occurrences took place, specifying the total number of occurrences that took place in each location,
  • the types of professional relationships that existed between the complainant and respondent, specifying the total number for each type,
  • the means by which resolution processes were completed and, for each of those means, the number of occurrences involved, and
  • the average time, expressed in months, that it took to complete the resolution process for an occurrence.
 
9. Penalties for non-compliance.

HR and management in charge of workplace investigations need to pay close attention to the new requirements in the Regulation and adjust their investigations and related processes accordingly. The government has a non-compliance approach that always starts with a request to voluntarily comply. Continuous non- compliance will lead to monetary penalties and the publication of the employer’s name in certain circumstances.

Catalina Rodriguez has experience as a workplace investigator in the Federal sector.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Responding to wrongful dismissal claims

Last week, the Globe and Mail reported that “scores of unvaccinated workers are filing wrongful dismissal claims against employers”. I have represented employees and employers at various stages of wrongful dismissals, from settlements to trials, and I have been getting many inquiries from employers asking how they should respond to wrongful dismissal claims. Below are my top 3 frequently asked questions and answers.

Q1: I received a letter from a former employee’s lawyer asking me to pay money. What should I do next?

Check to see when you need to respond by. If you only have a few days left, respond to the lawyer and tell them you are in the process of finding a lawyer and need more time – almost 99% of all lawyers will likely say “yes”. It is always easier, quicker, and cheaper for both parties to settle than to go to Court. By telling the lawyer you are getting legal advice, you are telling them that you are taking this seriously and that you want things to resolve as quickly, easily, and cheaply as possible. However, settlements require both sides to compromise and that’s why you need to speak to a lawyer who will tell you both the strengths and the weaknesses of your case and how much it will take for you to take your ex-employee to court versus settling.

Q2: I fired my employee for just cause because they refused to comply with our vaccination policy. Do I have a case?

We cannot give you a firm “yes” or “no” to this question. The reason why is because the question of whether an employer has just cause for termination is highly fact-dependent. Just cause for termination involves a two-step process where the employer must establish that the employee committed some form of misconduct, and that form of misconduct was serious enough to damage the employment relationship beyond repair.

To date, there has been no court decision anywhere in Canada that has ruled on whether non-compliance of a COVID-19 vaccination policy amounts to just cause for termination. We believe that once these cases start to arrive in court, they will all be decided differently, simply because the just cause test will apply differently across different industries, job positions, and work arrangements.

That being said, while just cause is not easy to prove, it is far from being impossible to prove. With the right set of facts, we believe that there is a good chance an employer can prove just cause for terminating an employee for their refusal to comply with a vaccination policy.

Q3: How should I decide whether to settle or go to trial?

I always tell my employer clients that a “win” in a wrongful dismissal is for their business to find the cheapest and least disruptive way possible to make the wrongful dismissal claim go away. For every employer, what this means will be different. Some things that come into consideration are:

  • How will my other employees whom I fired on similar grounds react if they learn that I settled?
  • How will my existing employees react if they learn that I settled?
  • How much time will I be taking away from making my business profitable if I decide to carry on with this lawsuit?
  • What are my odds of getting a less expensive result in court rather than settling right now?
  • If applicable, will pending lawsuits have any impact on my plans to sell the business?

These are challenging times and it is important for your business to make the right decisions and choices by consulting a lawyer on your next steps.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected]

Fired for refusing vaccination – can I still collect EI?

On October 21, 2021, Employment Minister Carla Qualtrough announced that it is likely that people who lose their jobs for not complying with employer COVID-19 mandatory vaccine policies will not be eligible for employment insurance (EI). Where does this leave those who are unvaccinated and find themselves unemployed because of this? Do they have access to EI?  

As an employment lawyer and a former EI adjudicator, I get many questions about EI eligibility. In my time at Service Canada I adjudicated over 9000 claims and I now help workers challenge denials. I have prepared answers to some FAQs below. 

Q:  I have been fired because of my decision not to be vaccinated and I was denied EI. I am also late into my pregnancy; will my maternity benefits also be denied? 

A:  These rules apply only to regular EI. These rules do not apply to “special benefits” which are a separate category of EI that includes sickness, maternity, parental, and compassionate care benefits. We do not expect that maternity leave benefits should be denied in this circumstance. 

Q: What is the legal basis for denying my EI if I am fired for non-vaccination? 

A:  The current rules allow Service Canada to deny your EI claim if you lost your job because of your own “misconduct.” Misconduct is defined by the Courts as conduct that the EI claimant knew or ought to have known would impair the performance of the duties owed to their employer and that, as a result, dismissal was a real possibility. I like to put in simpler terms: misconduct is something that you did and that you either knew or ought to have known could get you fired. Refusing to comply with a mandatory vaccine policy could be “misconduct”. 

Q:  What does Service Canada need to find to conclude that my refusal to comply with a mandatory vaccination policy amounts to misconduct? 

A:  In order find misconduct (and thereby deny you EI) for failing to comply with a mandatory vaccination policy, Service Canada needs to establish the following: 

  1. you knew or ought to have known your employer had a mandatory vaccination policy; 
  2. you knew or ought to have known that your failure to comply with that policy could result in your termination;  
  3. you were given a reasonable opportunity to comply with that policy; and 
  4. you were fired for your non-compliance with that policy and not for some other grounds.  
Q:  If I was terminated for not complying with my employer’s vaccination policy but my employer chose to terminate me “without cause”, can Service Canada still deny my EI? 

A: Yes. The finding of misconduct involves a completely different legal test and there have been many reported cases where the Courts have upheld Service Canada’s finding of misconduct even though the employee was terminated without cause.

Still have questions about a denial? Contact a lawyer with experience in EI matters. Denial of EI benefits can be a significant financial loss, and these decisions can be appealed.  

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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New – BC employers must provide employees 5 days of paid sick leave

The BC Government has announced that starting January 1, 2022, all businesses with employees falling under the Employment Standards Act will be required to give their employees up to 5 days of paid sick leave each year. Paid sick leave is a significant change in the minimum employment standards in BC.  We tackle some frequently asked questions below:

Q:        When does this rule come into effect?

A:         January 1, 2022

Q:        Are all businesses impacted?

A:           All businesses with employees falling under the BC Employment Standards Act are required to follow this rule.

There are some exceptions which could include:

  • unionized workplaces (which would have their own collective agreements);
  • independent contractors (who would have their own contracts);
  • certain professionals such as engineers, accountants, or lawyers (read more); and
  • federally-regulated businesses, for example those whose businesses are in the air transportation, banks or telecommunications industries (see list).
Q:        Which employees are covered?

A:            All employees falling under the Employment Standards Act, including full-time, part-time and casual workers.

Q:           Are there any conditions these employees need to meet before they become eligible for the paid sick leave?

A:         The employees need to have been employed for at least 90 calendar days. There is no requirement that they have worked a certain number of hours or days.

Q:           Does the 5 days of paid sick include the 3 unpaid days of sick leave that was recently added to the Employment Standards Act as a pandemic response?

A:            No, the 5 paid days are in addition to the 3 unpaid days, meaning that starting January 1, 2022, an employee could be at minimum entitled to 8 days off if they are sick, 5 paid and 3 unpaid.

Q:           Is a doctor’s note required?

A:         Employers are allowed to ask for “reasonably sufficient proof” and the employee must, as soon as practicable, provide such documentation to their employer.  No further details have been provided about what “reasonably sufficient proof” might be.

Stay tuned! We expect there will be more guidance from the Government of British Columbia coming out in the following weeks and we will updating this post.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

No jab, no job? Mandatory vaccines at work

No jab, no job?

Mandatory vaccines at work

Amidst the chaos, one message was consistent over the first 16 months of this pandemic – vaccinations were strongly encouraged but a personal choice, and mandatory vaccines were not being considered. In the last week, we have seen a dramatic shift in the position of our federal government and several provincial governments on mandatory vaccines. As of the time of writing this blog, mandatory vaccines have been announced for all federal government employees and our BC Provincial Government has announced mandatory vaccines for those working in long term care. We have also seen announcements from individual organizations in the public and private sectors that they are implementing mandatory vaccine policies.

Inquiries have been flooding our employment law firm over the last few days as businesses, workers and unions try to figure out their rights and obligations in a world where mandatory vaccines for workplaces may suddenly be on the table. Here are some answers to frequently asked questions:

1. Can a non-vaccinated person be fired because of their vaccination status?

Particularly outside of the government-mandated industries (in BC, long-term care and federal government employees), this is still a risky move for businesses. Refusing a vaccine is unlikely to be accepted as just cause for termination, which means severance pay would be owed. Unvaccinated workers can also expect a tougher time in a job search, which could increase the amount of severance pay due. In a unionized environment, this is even more complex as workers can generally only be fired for just cause.

The biggest risk, however, lies with the reason for refusing the vaccine. A blanket approach for all non-vaccinated workers is bound to fail. There is a group of people who are unable to be vaccinated for medical reasons or due to their religious beliefs. Firing a worker who is in this category could be the basis for a human rights complaint. Our BC Human Rights Tribunal is prioritizing Covid-related complaints and would be likely to take quick action.

2. Can vaccination status be a requirement for hiring?

A blanket requirement to be vaccinated to be eligible for a job is also problematic because it covers people with different reasons for refusing the vaccine. This requirement would discriminate against job applicants who are unable to be vaccinated for medical or religious reasons. Discriminating against a job applicant can the be basis for a human rights complaint, and the BC Human Rights Tribunal may also take quick action on this type of complaint.

3. Should businesses implement a vaccine policy?

Businesses should not jump on the wagon of mandatory vaccination without careful consideration. Mandatory vaccine requirements for some workers in some industries may be appropriate. For other workplaces, it may not make sense. Any policy with a mandatory vaccine must include processes to deal with exceptions for workers who are unable to be vaccinated (as different from those who are unwilling to be vaccinated). These processes should protect the privacy of those unable to be vaccinated as much as possible.

If a business is contemplating a mandatory vaccine, a clear written policy is essential, as well as a communications and employee relations strategy. Give the rapidly changing legal landscape on mandatory vaccines, businesses should also closely monitor any changes, and, as with all things in this pandemic, be prepared to pivot.

 

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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New COVID-19 Paid Sick Days Law in British Columbia

New COVID-19 Paid Sick Days Law in British Columbia

Effective immediately, employees in British Columbia are entitled to up to three paid sick days if they are unable to work for reasons related to COVID-19. Before this change, there was no legal requirement for employers to offer paid sick time. Employees are entitled to paid sick leave if:

  • the employee has been diagnosed with COVID-19 and is acting in accordance with an order or medical advice;
  • the employee is in quarantine or self-isolation in accordance with public health guidelines or orders; or
  • the employer has directed the employee not to work due to concern about the employee’s exposure to others.

Part-time and full-time employees are entitled to this paid leave between May 20, 2021, and December 31, 2021, regardless of how long they have been employed.

Employers are responsible for paying employees their regular wages for these paid sick days. If employers do not have an existing paid sick leave program, the provincial government will reimburse them up to $200 per employee per day. Reimbursement will be administered by WorkSafe BC and will not impact WorkSafe BC’s employer premiums or its accident fund. Details on the reimbursement program and how to register are expected to be available sometime in June.

This paid sick day law was enacted as a temporary amendment to the Employment Standards Act, 1996 (the “ESA”) and can be found at section 52.121. The three paid sick days are in addition to the three unpaid sick days that are available to employees for COVID-19 related reasons.

COVID-19 Paid Vaccination Leave

British Columbia also recently enacted a paid vaccination leave that entitles employees to up to three hours of paid time off to be vaccinated against COVID-19. This paid leave is retroactive to April 19, 2021. Employees are entitled to an additional three hours of paid time off for a second vaccine dose.

Permanent Paid Sick Days Starting January 1, 2022

Also on May 20, 2021, the ESA was amended to provide BC employees who are unable to work due to illness or injury with permanent paid sick days. This permanent paid sick leave program will start on January 1, 2022. The bill amending the ESA does not state the number of paid sick days that will be available to employees. The government is expected to announce this after consultation with stakeholders.

 

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Time to Work at Home (again) – Do you have a Policy for that?

Time to Work at Home (again) – Do you have a Policy for that?

With rising Covid numbers, many workers who had returned to the office are now turning around to head back to working from home. The November 7th B.C. Provincial Health Order states that employers should “encourage” their workers to work from home, if feasible. The purpose of the Order is to reduce the risk of transmission of Covid-19 in workplaces, but it is important to remember that employers are still responsible for ensuring their employee’s safety while working remotely.

WorkSafe BC Requirements

WorkSafe BC requires all employers to have a working from home health and safety policy in place, and provides guidelines for how to work from home safely. A Work from Home policy should include the following:

  • Employees should assess their workspaces and report any potential hazards to their manager
  • An evacuation plan for the worker’s home and how to contact them in case of an emergency
  • Safe work practices and how to report any work-related injuries
  • Communication plans for checking in on workers working alone or in insolation
  • Ergonomic considerations

Other Considerations

Beyond safety considerations, there are other issues that need to be addressed for remote workers. Will their hours of work be the same or different?  What protections are in place for company property and electronic information? What equipment and supplies will be provided by the company? How will employees stay connected with other employees in the workplace?

Does your company have a Work from Home policy? Whether you are an employer or a worker, if working from home is in the mix, you should know the answer to this question. While we all hope the restrictions in the Order will not continue after November 23rd, it is now clear that we need to be ready for ongoing remote work.  If your company does not have a policy and safety measures in place for remote work, you can reach out to WorkSafe BC or speak to an HR professional or employment lawyer for help.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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What does the November 7th Public Health Order mean for BC Workplaces?

What does the November 7th Public Health Order mean for BC Workplaces?

This weekend’s news and Order from BC Public Health Officer Dr. Bonnie Henry has an impact on employers and workers in BC. It is time to revisit our Covid Safety Plans.

Covid Safety Plans

Every employer in BC should have a written Covid Safety Plan. Covid Safety Plans have been required by WorkSafe BC since early in the pandemic and there are some really helpful tools and templates on the WorkSafe BC website.

A Covid Safety Plan outlines the policies, guidelines, and procedures put in place to reduce the risk of COVID-19 transmission at work. Plans are not “one-and-done” but need to be revisited periodically. With this weekend’s new health order, employers must review and may need to update their plans. Need help with a Covid Safety Plan? Contact WorkSafe BC, your HR Professional or an employment lawyer. We have helped many businesses put together plans.

November 7th Public Health Order

The Order is available online here and is in effect until November 23, 2020 at 12:00 PM.  Effective immediately, employers are required do to the following:

  1. Conduct active daily in-person screening of all onsite workers using the Covid symptom checklist.
  2. Ensure that all workers and customers maintain appropriate physical distance and wear masks where appropriate.
  3. Take extra care in small office spaces, break rooms and kitchens.

In her press conference on Saturday, Dr. Henry also recommended that employers encourage remote work where possible, although this is not included in the written Order.

Work-Related Travel

Travel, including business travel, is another activity impacted by the Order. Travel in and out of the Lower Mainland and Fraser Valley is limited to essential travel only.  There is no detail provided about what travel is essential, but there is a list of essential services online here.

We will get through this together and as always, be kind, be calm, be safe.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Covid Layoffs are Ending in BC, Now What?

Covid Layoffs are Ending in BC, Now What?

For workers and businesses in BC, ongoing changes to the temporary layoffs allowed by the Employment Standards Act (“ESA”) have been hard to track.  Pre-pandemic, temporary layoffs could not be longer than 13 weeks.  During the pandemic, our provincial government extended the allowed layoff length a few times and we are now coming to the end of the latest extended layoff period.

At the time of writing this blog, temporary layoffs due to Covid that started before June 1, 2020 are to a maximum length of 24 weeks, or must end on or before August 30, 2020, whichever is sooner. Assuming there are no more changes, what does this mean for businesses or workers covered by BC Employment Standards with temporary layoffs that started before June 1, 2020?

  1. Deemed Termination

If nothing happens, and a worker remains on temporary layoff as of August 30, 2020, their employment is deemed to be terminated by the ESA. That means that their employment relationship ends and they are generally owed severance pay of at least the minimum amounts under Section 63 the ESA of 0-8 weeks, depending on length of service. Severance could be much more than these minimums if there is a group termination of more than 50 workers at a single location, or if common-law severance is owed.

There is an exception to severance pay requirements were an employer can prove that Covid-19 made the employment contract impossible to perform (see Section 65(1)(d) of the ESA).  This is called “frustration of contract” and is assessed on a case-by-case basis.  Not every business that has been impacted or had to downside because of Covid-19 will be able to use the frustration defense, and this is a new application of law, so quite unpredictable.

  1. Variance

Employers in BC have the option to apply for a “variance,” to extend the temporary layoff period past August 30, 2020. Employers must submit an application for a variance by August 25, 2020, and it must include the expected recall date, as well as evidence that 50% or more of impacted employees agree with the variance request.  The variance application link and information are here.

  1. Return to Work

The final option is for businesses to bring workers back from layoff before August 30, 2020.  This may involve a return to the worker’s pre-layoff job and schedule, or there may be changes needed.  There is potential for disagreement and possibly constructive dismissal claims based on changes, which are complex legal matters.  One thing that is set by the ESA is if wages are reduced by 50% or more, the worker is still considered to be on layoff, and so the deemed termination could still take place.

In this unprecedented time of change to our employment laws, it is important to verify the current status before you make decisions.  The best source of up-to-date information is the BC Government’s Employment Standards Act website.  Seek advice from an employment lawyer if the ESA does not apply to you, if you are considering a return to work agreement or to get information about severance requirements.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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