On March 12, 2020, the British Columbia government Provincial Health Officer and Minister of Health issued a joint communication that includes the following directions:
- “We are recommending against all non-essential travel outside of Canada, including to the United States. Effective today, anyone who chooses to travel outside of Canada will be asked to stay away from work or school for 14 days upon their return. We know that this is a voluntary measure, but it is our expectation that people will follow this direction as part of their civic duty.”
- “Effective today, we also directing all event organizers to cancel any gathering larger than 50 people. This includes indoor and outdoor sporting events, conferences, meetings, religious gatherings or other similar events. This threshold has been selected, as it is much easier to maintain important social distancing to prevent transmission of COVID-19.”
- “Over spring break the B.C. government will also work with school districts to develop procedures to be implemented with students and staff when classes resume.”
- “We are asking employers to excuse staff for sick leave without requiring a doctor’s note, if their employees are ill or required to self-isolate. We are also reinforcing that if you have symptoms and may have been exposed to COVID-19, you must call your local primary care provider, or 811, to arrange for safe testing.”
- “We have heard reports of employers requiring all their staff to get tested. Only a health-care professional can determine whether you require a test – and employers should not require employees to have a test if a health-care provider has recommended against it.”
Issues for Employers
Travel Outside Canada
Employees should be advised that they are expected to follow the guidance of the Provincial Health Officer to refrain from all non-essential travel outside of Canada (including to the United States) and to self-isolate for 14 days if they do travel outside of Canada.
Employers with employees required to cross the Canadian border as part of their duties should consult with the appropriate regulatory agencies for advice.
Employers should be aware that guidance is evolving and should continue to monitor for developments.
- Ensure there are no work-related gatherings of 50 people or more.
- Consider other ways of minimize the need for in-person meetings or gatherings.
- Review public health guidance on social distancing.
- encourage employees to avoid handshakes
- increase space between people in meetings and other workplace settings
Our Union has asked us to sign an LOU – what should I do?
Several unions are approaching employers with requests to sign LOU’s providing significant benefits to employees relating to the COVID-19 outbreak. We are actively advising many clients in this area and strongly suggest you seek legal advice before signing this type of document.
Questions Regarding Pay
Are employees entitled to pay if they are sick, under mandatory quarantine, or self-isolating based on public health direction?
Entitlement to pay will depend on contracts of employment, personnel policies and/or your Collective Agreement provisions. If the employee is eligible for sick leave, they are entitled to pay if sick with COVID-19.
If you have provisions allowing for pay during quarantine or self-isolation, then those provisions would apply in accordance with the specific language in the employment contract, personnel policy and/or Collective Agreement.
Are employees entitled to pay if they engage in non-essential travel contrary to public health advice at this time?
Consider whether the employee departed for their travel before the current guidance against non-essential travel outside of Canada. Some Collective Agreement and employer policies may allow for pay during quarantine on the basis that quarantine was not avoidable. If the employee departed after the guidance was issued, there is no entitlement to pay unless your Collective Agreement or policy would specifically allow for pay regardless of an employee’s choice to contravene public health direction.
Can an employer ask an employee whether they have travelled out of the country?
An employer is permitted to collect and use personal information when it is necessary for managing the employment relationship. While information about an employee’s personal travel plans would not ordinarily fall into this category, in these circumstances asking for a reasonable amount of information about an employee’s out-of-country travel is directly related to the employer’s ability to manage and keep the workplace safe.
If we discover an employee has tested positive, what are we permitted to tell staff?
Privacy laws permit the appropriate sharing of personal information for safety and employment purposes. It is appropriate to share information with co-workers if the employer learns that one of its workers has tested positive for COVID-19 and may have exposed others to risk. How much information to share will depend on the circumstances, but employers should not disclose more than necessary to address the risk, limit disclosures to those who are actually at risk of exposure and, whenever possible, avoid specifically identifying infected employees who have tested positive. Employers should also provide notice to and be transparent with the affected individual about what information is being shared about them.
Employment Insurance Benefits
Employees who are not eligible for sick leave benefits or other forms of paid leave may be eligible for Employment Insurance sickness benefits.
The federal government has also taken action to waive the 1-week waiting period for employees in quarantine or who have been directed to self-isolate so that they can immediately receive EI benefits. Such benefits likely do not cover workers who have voluntarily chosen to self-isolate and are not ill or do not have a legitimate reason to be self-quarantined. Guidance on when to quarantine should be taken from the BC Centre for Disease Control local public health office or Health Link (call 811).
What About Proof of Illness or Self-Isolation?
The Provincial Health Officer is asking employers to excuse staff for sick leave without requiring a doctor’s note, if their employees are ill or required to self-isolate. Employers should be mindful of this public health request in this special circumstance as it reduces burdens on the medical system at this time.
If there are reasonable questions about whether the employee is ill or required to self-isolate, consider if there are other ways that you can verify this information.
Staying Home from Work
Employees should be directed that they must remain away from work if they are ill and/or exhibiting any cold or flu-like symptoms.
If employees begin to feel ill or exhibit symptoms while on duty they should be directed to advise the appropriate supervisor or manager for direction about safely leaving the workplace.
If there is a question about whether an employee is able to be at the workplace, consult public health guidance through 8-1-1.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.