Everyday Legal Problems

“After being laid off when the pandemic hit, I’ve been called back to work. As much as it’ll be great to get a full pay cheque again, I’m worried. My boss hasn’t been taking COVID-19 very seriously. It doesn’t feel like my workplace will be safe. What can I do?"

– Joseph, Victoria

Can I refuse to work during the pandemic?

There are certain situations where that’s a definite yes. Examples would be if you have COVID-19-like symptoms or have arrived from outside of Canada in the last 14 days. WorkSafeBC outlines situations where workers should not go to work.

More generally, workers have the right to refuse work if they believe it presents an undue hazard. WorkSafeBC explains what amounts to an undue hazard. It’s an “unwarranted, inappropriate, excessive, or disproportionate” hazard. For COVID-19, an undue hazard is one where a worker’s job role places them at increased risk of exposure and adequate controls are not in place to protect them from that exposure.

In these circumstances, WorkSafeBC advises to follow these steps within your workplace to resolve the issue. The first step is reporting the unsafe condition to your employer. The employer must investigate the matter and fix it if possible. If the matter is not resolved, you and your employer must contact WorkSafeBC. A prevention officer will investigate and take steps to find a workable solution.

I’ve heard workplaces must have a COVID-19 safety plan. What is that?

Every employer in BC is required to have a COVID-19 safety plan. The plan must assess the risk of exposure at the workplace and spell out measures to keep workers safe. For example, the plan may involve limiting the number of workers on site, to ensure physical distancing guidelines are respected. WorkSafeBC explains what the COVID-19 safety plan must cover, and has a template employers can use to create their plan.

By order of the provincial health officer, the COVID-19 safety plan must be posted at the workplace and on the organization’s website.

A workplace does not need a formal safety plan in place to begin operation, but employers are expected to develop the plan while protecting the safety of their workers.

Can my employer just tell me not to come in?

They can. In some cases, they may ask you to work from home, which they can do to protect the safety of the workplace as a whole. Otherwise, if they're no longer paying you (or paying you significantly less), this would be considered a lay off.

But, will I get paid?

If you’re laid off, your employer owes you any wages you’ve earned that they haven’t yet paid. They also owe you severance pay — unless it’s a valid “temporary layoff” (check out our question below about this type of layoff). The amount of severance can vary. It depends on how long you worked for them, what’s in your employment contract, and other factors. Take a look at our information on severance pay.

This is a trying time for both workers and employers. If you like your job, try to keep communication lines open with your manager through the crisis to understand when you may be able to come back. 

Am I eligible for financial aid?

Emergency government programs are available to workers affected by the pandemic. The Canada emergency response benefit (CERB) is a $2,000 payment every four weeks, for up to 28 weeks. It's available to those whose work has been affected by the coronavirus pandemic. It’s also available to workers eligible for employment insurance regular or sickness benefits, and those who have recently exhausted their EI benefits.

Those approved for the Canada emergency response benefit can also get the BC emergency benefit for workers, a one-time $1,000 payment.

We have guidance to help with figuring out which benefits you’re eligible for. We walk you through the factors in play and the steps to take action.

Note that in August, the federal government announced plans to transition to a simplified employment insurance program in late September, to provide income support to those who remain unable to work due to the pandemic. Make sure to check back later on this development.

How do I apply for the emergency benefits everyone’s talking about?

The Canada emergency response benefit (CERB) is a key support for workers affected by the coronavirus outbreak. The government is advising everyone applying for federal benefits, whether CERB or employment insurance, to start the application on the CERB portal. The portal guides you through a set of questions, and routes you to where you submit your benefits application.

As well, if your ability to work has been affected by the outbreak, you can apply for the BC emergency benefit for workers. This is a one-time $1,000 payment.

I was told my layoff was just “temporary.” What does this mean?

A temporary layoff is a specific type of layoff where employers don’t have to pay severance. But employers can’t do this unless at least one of these three things applies: you’re in an industry where layoffs are standard practice (for example, forestry), you agree to the layoff, or it’s in your employment contract. The pandemic, on its own, does not give your employer a legal right to lay you off temporarily.

If none of the reasons above apply, then you have a right to receive severance pay. The amount depends on how long you worked for them, what’s in your contract, and other factors.

If they’re allowed, temporary layoffs still can’t last forever (they call ‘em temporary for good reason). Generally, it’s a maximum of 13 weeks. If your employer isn’t ready to recall you back to work after 13 weeks of layoff, they have two options. They can apply to extend the temporary layoff, or they can pay you severance. In applying for an extension, the employer must show that at least half of affected employees support the application. The Employment Standards Branch has details of the process.   

While you’re laid off, you can apply for federal benefits. In addition to employment insurance, you may be eligible for the Canada emergency response benefit (CERB). It provides $2,000 every four weeks, for up to 28 weeks. It’s available to (among others) workers who still have their job but aren’t working or whose hours have been cut due to the coronavirus outbreak. The government is advising everyone applying for federal benefits, whether EI or CERB, to start the application on the CERB portal.

As well, workers affected by the pandemic can apply for the BC emergency benefit for workers. This is a one-time $1,000 payment.

My workplace cut my salary in half. Can they do this?

If you’re still working full-time, then cutting your salary in half could be considered constructive dismissal. This is when your employer changes your job in a major way, and you don’t agree to it. If you want to quit over this, you’d likely be entitled to severance pay. But proving constructive dismissal is no small matter. You may choose to discuss the situation with your employer, perhaps reducing your hours to part-time to match up with the reduced salary.

If your work hours are reduced because your workplace has to slow down because of the pandemic, you can apply for employment insurance benefits. (To qualify, you need to, among other things, have gone at least seven days without work and without pay.) Or, if your work hours are substantially cut, you can apply for the Canada emergency response benefit. The CERB benefit provides $2,000 every four weeks, for up to 28 weeks. It’s available to workers who currently earn no more than $1,000 per month.

The government is advising everyone applying for federal benefits, whether EI or CERB, to start the application on the CERB portal.

As well, be aware that those approved for CERB can apply for the BC emergency benefit for workers. This is a one-time $1,000 payment.

I’m feeling ill. Can I take time off work and keep my job?

On March 23, the BC government established two new types of unpaid leave for those unable to work due to illness. An employee can now take up to three days of unpaid leave each year if they can't work due to personal illness or injury. This is a permanent change to the law. It provides job protection for illness or injury similar to what workers get in other parts of Canada. You must have been in the job for at least 90 days to qualify for this leave.

There’s also now an unpaid, job-protected leave due to COVID-19 reasons. Employees can take an indefinite unpaid leave if they’ve been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse. This leave is also available for other coronavirus-related reasons, such as if your employer directs you not to work due to concern about your exposure to others. The Employment Standards Branch explains who’s covered.

As well, our laws prevent discrimination against workers if they have a disability. BC’s Human Rights Commissioner views COVID-19 as a disability (saying it is more akin to HIV than to the common cold). So this means if you have COVID-19, your employer can’t treat you differently — without justification — than someone who doesn’t have it. For example: they can ask you to work from home so that everyone can stay healthy, but they can't deny you, say, a promotion or flexible work arrangements just because you have COVID-19.

Plus: the province is advising employers they must excuse workers for sick leave without requiring a doctor’s note, where workers are ill or required to self-isolate due to COVID-19.

Will I get paid when I take a sick day?

There are no laws in BC requiring employers to give paid sick days. But many employers provide them, recognizing it’s better to let you rest and recover. You can ask your employer for extra paid sick days, but they may be feeling the crunch too and cannot afford it. We offer tips on working things through with your employer.

If your employer has an extended health plan, you may be covered under short-term disability benefits (ask your plan administrator). 

You can also apply for federal benefits. If you’re unable to work because of illness or quarantine during the coronavirus pandemic, you can apply for employment insurance sickness benefits. As well, the Canada emergency response benefit is available for (among others) workers who are sick with COVID-19. It provides $2,000 every four weeks for up to 28 weeks. The government is advising everyone applying for federal benefits, whether EI or CERB, to start the application on the CERB portal.

Also be aware that those approved for CERB benefits can apply for the BC emergency benefit for workers. This is a one-time $1,000 payment.

I’m self-employed, but now I’m sick and can’t work at all. What are my options?

Employees in BC have their wages backstopped against layoffs. A self-employed person doesn’t, unless they register themselves and pay into the employment insurance system.  

Those who do register can get EI sickness benefits, paid to those who can’t work for medical reasons. Here's who can qualify.

For those who aren’t covered by EI, the new Canada emergency response benefit (CERB) is a game changer. The CERB benefit provides $2,000 every four weeks for up to 28 weeks to those who have stopped working for reasons related to the coronavirus outbreak. It’s available to self-employed people (including contract workers) who would not otherwise be eligible for EI.

The government is advising everyone applying for federal benefits, whether CERB or EI, to start the application on the CERB portal.

Note as well that those approved for CERB benefits can apply for the BC emergency benefit for workers, a one-time $1,000 payment .

I’ve got to take care of my kids. Will I still get paid?

It’s unlikely your employer will continue paying your salary if you can't continue to work (although it doesn’t hurt to ask). And normally, you can’t claim employment insurance benefits if you quit your job or have to take care of a family member who isn’t critically ill.

Thankfully, federal and provincial governments have made some big changes.

First, the federal government has expanded its child benefit, providing an extra $300 per child, per year.

Plus, the new Canada emergency response benefit (CERB) is available to working parents who must stay home without pay to care for kids that are sick or need additional care because of school and daycare closures. This benefit provides $2,000 every four weeks, for up to 28 weeks. You can apply on the CERB portal.

As well, those approved for CERB benefits can apply for a $1,000 emergency benefit from the BC government.

Will my job be there when I get back?

The laws in BC provide for unpaid leaves of absence, where an employee can take time off without pay and still have their job waiting for them when they get back. We explain personal and family leaves and sick leave, and offer tips on how to ask for a leave.

The amount of leave varies, depending on the type of leave. Employees get three days of unpaid leave each year if they can't work due to personal illness or injury (note: this is new). They also get five days of unpaid leave per year to care for someone in their immediate family. They get between 16 to 36 weeks to care for a family member (depending on their age) that is critically ill. Whether COVID-19 qualifies as “critically ill” is not certain.

Plus: On March 23, the BC government introduced an unpaid, job-protected leave due to COVID-19 reasons. Someone can take an indefinite unpaid leave if they’ve been diagnosed with COVID-19, and for a range of other coronavirus-related reasons. Workers who have to self-isolate, need to care for children or family, or were told to stay away from work by their boss will be able to take an unpaid leave without putting their job at risk. 

Note that these rules only cover “employees,” not contractors or gig-economy workers.

As well, under our human rights laws, employers must not discriminate against people based on certain personal characteristics (for example, religion, disabilities, or family status). If you’re disadvantaged at work because of a personal characteristic, your employer has a duty to accommodate you. If you have kids to take care of, it’s likely your employer has to take reasonable steps to accommodate you. But you should take certain steps here before asking for extended leave time. For example, you might see if family members can help, or if child care is available. 

Can my employer ask me if I have COVID-19?

Yes. Your employer has to make sure all of their employees work in a safe environment. This applies whether the workplace is big or small. They can ask (and require you to tell them) if you have the illness or have been in contact with somebody who has. They can also require you to self-quarantine if you’ve recently returned from a coronavirus outbreak hotspot.

Your employer can also remind you to wash your hands and tell you to be prepared to work from home.