Our Audit & Forensic Partner Jim Fernandez hosted Dean Davison, ghghgCivil Litigation Lawyer from Davison Law Group during our Survive & Reboot webinar for part two of our discussion on best practices for employers in B.C.
Dean discussed workplace safety and legal and human resources issues reopening businesses.
If you missed part one, be sure to catch up here.
Bringing employees back
Recent amendments to the B.C. Employment Standards Act have extended the maximum unpaid leave period for employees from 13 weeks to 16 weeks. This means employees are entitled to unpaid leave for up to 16 weeks due to COVID-19 provided they meet one of these criteria:
- They have been diagnosed with COVID-19
- They are quarantined due to COVID-19
- They have been directed not to work to protect others
- They need to care for children or dependents
- They are outside B.C. and cannot work
Employers must understand that once this period has ended, they are required to allow employees to return to work. If employees are not brought back, or brought back with their job and/or pay modified in a significant way, this could trigger constructive dismissal.
If an employer brings an employee back during the leave period with less than 50% of regular hours, this time will still count towards the 16-week maximum.
If you have reduced hours or stopped work altogether, Dean recommends waiting until the government announces it is safe for businesses in your industry to return to work. Of course, you should follow all safety guidelines that apply to your business activities in doing so.
It's important to note these guidelines can potentially come from different levels of government. For most businesses operating in B.C, this will likely be provincial and municipal governments.
What if some employees are concerned and don't want to return to work?
This can be a challenge. Some are concerned about taking transit, being exposed to colleagues, etc. As a good legal framework, Dean recommends:
- Discuss employee concerns with them
- Identify specific situations that might make them more vulnerable
- See what you can do to accommodate their concerns
Accommodating their concerns is particularly important as all employers have a Duty to Accommodate employees under human rights legislation.
In some cases, you may need to make the difficult decision of demanding they come in to work. Dean recommends seeking professional advice before doing so. Always document everything.
In all situations, do everything you possibly can to accommodate and communicate with the employee before letting them go.
Keeping the workplace safe
When keeping the workplace safe, Dean recommends:
- Follow all applicable guidelines: check guidelines released by federal, provincial and municipal governments frequently. If there are any specific governing bodies or industry associations that apply to your business, stay up to date with them as well.
- Keep records of everything: if an employee complains about unsafe working conditions, the onus often falls on the employer to prove they took all necessary precautions. Take photos, inspect your workplace, have written policies and checklists if needed. Have plenty of documentation to prove you made every attempt to make your workplace as safe as possible.
- Ensure your workplace is above minimum standards: in addition to following all Occupational Health and Safety regulations (OHS) and government guidelines, consider the guidelines in the WorkSafeBC guide to returning to safe operation.
Privacy issues for employers
As an employer, you are responsible for protecting all personal information collected about employees. Do not disclose any personal information about any employee, unless you absolutely must.
If an employee has a pre-existing health condition and cannot perform certain duties due to heightened risk of COVID-19, their privacy in the matter must be respected. According to Dean, businesses can face hefty fines for breaching privacy laws.
Overall, if you can ensure a safe working environment to government standards, accommodate employees as much as possible, keep employee information secure, and be able to prove you've taken all the necessary steps, your business will be in good shape for returning to work.
Dean Davison practices law primarily in the area of civil litigation, with a focus on business disputes for medium sized local and national organizations, including but not limited to conflict arising out of contract, employment and human resources matters and leases, and estates, for which he regularly appears in all levels of court in British Columbia.
Fernandez Young LLP can help your business navigate the financial challenges of COVID-19 and make sure you get the right government benefits.
This post is not intended to serve as legal advice, and only provides general information. Always seek professional advice if unsure about a decision related to employment law.