Employers in Trouble Times: Responding to Covid-19 - April 22, 2020 Presented By
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Employers in Trouble Times:
Responding to Covid-19
April 22, 2020
Presented By
Elizabeth Reid, Shareholder
1Topics for Today
1. New Changes to the Employment Standards Act – “Covid-19 Leave”
2. Changes to Working Conditions – Reduced Pay & Reduced Hours
3. Workforce Reductions – Temporary Layoffs
4. Workforce Reductions – Permanent Changes
5. Benefits for Employees Affected by Covid-19 – Current to April 22,
2020 @ 11 a.m. PST
2The (Large) Fine Print
Disclaimers:
• This presentation provides general
information and not specific legal advice.
• Focus is B.C. law for provincially regulated
employers
• Current to: April 22, 2020 @ 11 a.m. PST
3Leave Unique to COVID-19
Employment Standards Act now has COVID-19 leave
• Unlimited leave for as long as the situation demands
• Employee is obliged to explain why they need the leave
• Doctor’s notes are not required, nor permitted
• Will be removed from the ESA following this pandemic.
• Is retroactive to January 27, 2020
4Who can take COVID-19 Leave?
• People diagnosed with COVID-19 or people in quarantine/self-
isolation due to:
• Order of the provincial health officer
• Order made under the federal Quarantine Act
• Guidelines from BC CDC or Public Health Agency of Canada
• People whose employer has directed them to not work due to
concerns about their exposure to others
• People who need to provide care to a minor child or dependent
adult, either generally or because of school or facility closure.
• People stuck outside BC and unable to return to work due to travel
or border restrictions.
5Obligations During COVID-19 Leave?
Employers’ obligations for job-protected leaves
• Employee gets to take the leave (generally regardless of time
served)
• No punishment or termination for taking leave
• Must be returned to work in the same or a comparable
position
• If operations are suspended, must return them when
operations resume
• Employment is deemed continuous for service-based
entitlements
• Employers must continue to pay their share of benefit plans
6Changes in Compensation/Hours
• Reductions in pay or hours of > 10-15 % may = constructive
dismissal
• Substantial changes require the employee’s consent
• No consent = risk of a wrongful dismissal lawsuit or complaint
under the BC Employment Standards Act (“ESA”)
• Be careful that changes are not so drastic that they accidentally
create a layoff (e.g. reduction of wages > 50%)
• Keys to successful changes: clear, time-bound, set out and
consented to in writing by the employee
7Temporary Layoffs
• There is NO general right to lay people off temporarily
• Must be in a written agreement or customary in the
industry
• OR the employee must agree to the layoff
• If layoff lasts > 13 weeks out of 20, may be deemed termination
under the ESA
• Keys to successful temporary layoffs: clear, time-bound, set out
and consented to in writing by the employee
8Temporary Layoffs cont’d
Practical considerations & key documents
• How will the people being laid off be told?
• How will those who are left be told?
• How will your stakeholders be told? (consider clients, vendors,
your board, shareholders or other investors)
• How will you manage the transition of work (if necessary)?
• Will the employees have access to keys/security passes, parish
property, IT infrastructure, etc.?
• How will you stay connected to those who have been laid off?
• Key Documents: Temporary layoff letters (to be signed by the
EE), ROEs
9Permanent Reductions in Staff
• Notice is still required, even in these unprecedented times
• No notice = risk of a wrongful dismissal lawsuit or complaint
under the BC Employment Standard Act (“ESA”)
• Amount of notice is determined by the ESA, the common law,
and any employment contract or offer letter
• Can be personal liability for directors and officers for amounts
owed under the ESA – up to 2 months’ wages
• Consider offering a little bit extra in exchange for a release
10Permanent Reductions in Staff con’d
• Consider benefits and whether those can be extended (loss of
benefits can create high risk these days!)
• Are exceptions to notice requirements – e.g. casual employees
• If you have been FORCED to close by order of the health officer
and will not be re-opening, consider frustration of contract
doctrine and related sections in the ESA
11Benefits for Employees
• Government benefits are changing rapidly
• This presentation is accurate as of April 22, 2020 @ 11 a.m.
• The key benefits for employees right now are:
• Canada Emergency Benefit (CERB)
• Employment Insurance
• BC Emergency Benefit for Workers
• There are many other benefits but they are much smaller and
have stricter eligibility requirements (e.g. GST Tax Credit,
Canada Child Benefit, Climate Action Tax Credit)
12Benefits for Employees
• Canada Emergency Response Benefit
• General Eligibility
• at least 15 yrs old
• resident in Canada
• had total income of at least $5,000 in 2019 or the last
12 months
• have a valid social insurance number
• did not voluntarily leave your job
13Benefits for Employees
• Canada Emergency Response Benefit, continued
• Key Criteria:
• stopped work or have reduced income to less than
$1,000 per month because of Covid-19
• sick or quarantined (no medical note req’d)
• taking care of someone else with Covid-19
• are a working parent who has to stay home to care
for children
• Amount: $2,000 per month for up to 4 months
14Benefits for Employees
• Canada Emergency Response Benefit, continued
• Applications can be made online or over the phone (note
dates for applications based on birthdate)
• Time Benefit Will Be Offered: Between March 15 –
October 3, 2020
• Amount: $2,000 per month for up to 4 months; taxable
benefit (but tax not deducted at source)
15Benefits for Employees
• Canada Emergency Response Benefit, continued
• Overlap with EI
• Cannot get EI and CERB at the same time
• Employees who have EI claims after March 15 will be
processed through CERB
• After CERB is over, if employee is eligible for EI they
can still get EI benefits
• Period of receiving CERB does not impact EI benefits
16Benefits for Employees
• BC Emergency Benefit for Workers
• One time, tax-free payment of $1,000
• To date, no information on eligibility requirements or how
to apply is available, but it looks like it will be tied to the
federal CERB program
17THE END
Thanks for joining us!
If you need assistance with a specific issue and would like to
retain counsel, you can contact Elizabeth directly or try our
new CovidResponse hotline:
604-605-8337
CovidResponse@boughtonlaw.com
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