COVID-19: Employer and Employee Rights and Obligations

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Note: This article is out of date. You can find our latest articles on the rights and obligations of employers and employees during COVID-19 here, here, and here.

What we know about the Virus

COVID-19 (also known as the coronavirus) has been declared a public health emergency of international concern by the World Health Organization. With an increasing amount of confirmed cases in Canada, employers and employees may be wondering how this pandemic outbreak can impact their work environment.

Legal Obligations

Both employers and employees have an obligation to ensure the health and safety of their workplace under the Workers Compensation Act and the Occupational Health and Safety Regulation. These obligations include taking reasonable steps to protect employees from a contagion such as COVID-19.

Employers also have an obligation to ensure that personal information of employees, including health information, is kept confidential in the workplace.

Right to Refuse Work & Right to Prohibit Employees

Any employee who believes that a condition in the workplace is likely to endanger their health or safety, can refuse to work under applicable occupation health and safety legislation. If an employee refuses to work, employers should handle the situation on a case-by-case basis and consider the situation on its merits. Employers are advised to err on the side of caution and consider things such as whether any individual in the workplace is symptomatic or if there has been recent travel to a place where cases of COVID-19 have been identified in larger numbers.

Under certain circumstances, it may be reasonable to instruct an employee to stay away from the workplace if that employee has a heightened risk of infection, until that employee can provide medical documentation confirming they are not at risk. However, employers should be mindful not to invite an allegation of constructive dismissal or an employment-related complaint by unreasonably refusing employees access.

Paid Sick Leave & Leave of Absence

Employees may be entitled to paid sick leave, if provided for in their employment contract or in a workplace policy. Employees who have symptoms of COVID-19  should be treated the same as any other sick employee. If paid sick leave is not provided for in an employment contract or policy, the employer is not obligated to provide paid sick leave. The employee may, however, be eligible for EI sick leave benefits while on their unpaid leave of absence.

An employee who  has a family member who falls ill, may be entitled to an unpaid but job protected leave of absence under the BC Employment Standards Act, such as family responsibility leave or compassionate care leave.

If an employee is not symptomatic but is subject to quarantine, it is recommended that employers do not terminate the employee as a result of their absence. If COVID-19 becomes a widespread problem, we anticipate the government will put job protection and other employment related measures into place.

Discrimination & Harassment

Under human rights law in BC and throughout Canada, employees are protected from discrimination based on the prohibited grounds. Employers should take steps to guarantee that no employee is subject to discrimination as a result of a misconception that they are the carrier of a communicable disease. Any employee who has been wrongly singled out in this manner of stereotyping may have a claim for prohibited discrimination in employment.

Please contact any of the Employment and Labour lawyers of Clark Wilson LLP for further information.