It’s been about 5 days since I published my first article dealing with coronavirus and the workplace, but it seems like a year has passed. A lot has changed in the last week.
The questions I am receiving from employers have evolved and the issues have become more complex. Keeping in mind that this is a rapidly changing situation and we’re all navigating uncharted waters, here is what I can say in week two of our brave, new world.
Employers were asking, last week, about whether they could require employees who have travelled abroad to stay home. That was before governments had issued edicts relating to international travel, self-isolation, and social distancing.
The answer then, as now, was a resounding “Yes!”. Employers have an obligation to all their employees to provide a safe and healthy workplace. If the individual has travelled to a risky part of the globe (is anywhere not risky, now?) and there is a legitimate concern he/she may have been exposed to the virus, the employer is obligated to take steps to minimize the resulting risk to others.
So, yes, employers should direct employees to stay at home in that situation. Fourteen days seems to be the commonly-accepted isolation period. I urged employers to find ways to keep paying people during those leaves by having staff use up accrued vacation pay, banked overtime, etc. Beyond that, employers can gift additional (paid) sick days or vacation time, permit the employee to borrow against future sick days or vacation time, or set up a time bank (by which the employees will be paid during the stay-at-home period in exchange for hours of work to be performed later).
In the 5 days or so since my last bulletin, international air travel has been significantly curtailed, there is talk about borders being closed, the Canadian and provincial governments are urging people not to gather in groups of just about any size, and various businesses (particularly in the service industry) are either curtailing hours or shutting down altogether.
We’ve gone beyond wondering if an employee or two can be required to stay home upon returning from an international trip. Employers are now asking about whether they can lay off larger numbers of staff in this situation, whether they are obligated to pay them during a (possibly extended) layoff, and what ramifications all that will have for employment relationships and what possible liabilities they may be triggering.
Laying Off Staff During A Business Shutdown
Again, let me emphasize, these are uncharted waters and we’re all trying to provide the best answers we can in a rapidly evolving situation.
Ultimately, if the coronavirus and the related government directives result in a partial or complete shutdown of a business, staff will have to be laid off. A layoff is a temporary interruption of the employee’s active provision of employment services and of the employer’s payment of wages.
Most employment contracts (verbal and written) don’t authorize the employer to impose temporary layoffs. That’s a fact. And, in B.C. at least, (contrary to popular belief) the Employment Standards Act also does not authorize the imposition of temporary layoffs. The Act just talks about what a temporary layoff is and how long it can last.
So, employers who (without authority) lay off staff face the risks and liabilities associated with being found to have – by doing so – constructively dismissed their employees. That produces concerns about (statutory and common law) damages for wrongful dismissal. Normally, I would be expressing great caution and concern about an employer taking that action.
In this unprecedented situation, however, employers laying off staff should be able to take some comfort that they would be protected against resulting claims by the common law and statutory versions of the doctrine of “frustration”. In the words of the B.C. Act, an employer has no obligation to provide working notice or pay in lieu to an employee if he/she is
“employed under an employment contract that is impossible to perform
due to an unforeseeable event of circumstance…”
That provision is essentially the codification of the common law doctrine of “frustration”. In the present situation, I have confidence that administrative tribunals and courts will view the spread of the coronavirus – and resulting workplace implications – as an unforeseeable event which is beyond control of the employer or the employee. I can’t, of course, guarantee that outcome.
If, after the initial coronavirus wave has passed, employers did not return staff to work then that would be a wrinkle which might alter the applicability of the “frustration” doctrine. And, in union settings, employers must of course take care to ensure they are complying with the requirements of their collective agreement.
I do still urge employers to find ways to keep employees paid if possible. As a fallback, the federal government has announced E.I. relief in the form of reduced or entirely waived waiting periods. That’s a bit of good news that will be welcome to people in these uncertain times.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.