From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.
Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.
On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.
Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.
Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.
Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.
Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.
Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.
From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.
The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”
Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.
One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.
Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.
The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.
Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.
Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.
MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.