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Trevor Thomas

Trevor Thomas is an employment lawyer with Kent Employment Law. Trevor combines fresh ideas with solid legal advice, appealing to employers and employees who are seeking innovation and change management. An engaging speaker and respected writer, Trevor is often asked to share his legal expertise at community and professional events. He is the editor of the employment law section of Clicklaw's Legal Help for British Columbians

Information this contributor has reviewed

Coronavirus: Your Legal Questions Answered

Guidance for British Columbians during the pandemic.

Guidance for British Columbians during the pandemic 

The coronavirus outbreak has dramatically impacted much about our lives in a short time. We’re here to help with answers to common legal questions on work, homemoney, consumer, business, and courts & legal services

Updated April 2, 2020 at 7:30 am PDT. We intend to update this page regularly as developments unfold. 

Work

I work two jobs, both part-time. One of my bosses has reduced my hours; the other had to lay me off indefinitely. I know this is a tricky time for companies, especially with all of the restrictions on social gathering. But don’t I have rights? What can I do?"

– Joseph, Victoria

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 the next question. 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. 

If you’re eligible, you can apply for employment insurance.

Or, you can apply for the federal government’s new emergency response benefit. This provides $2,000 a month for up to four months. It’s available to workers who have stopped working due to the coronavirus outbreak and don’t have access to paid leave or other income support. You can apply beginning in early April.

As well, those receiving EI or the new federal emergency benefit will be able to apply shortly for the BC emergency benefit for workers. This tax-free $1,000 payment will go to those whose ability to work has been affected by the outbreak. This one-time payment will be made in May.

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, some hotel chains), you agree to the layoff, or it’s in your employment contract. If none of these apply, then you have a right to receive severance pay. The amount depends on how long you worked, what’s in your contract, and other factors

Temporary layoffs can’t last forever (they call ‘em temporary for good reason). Generally a maximum of 13 weeks, unless you’re in a union where a different time frame applies. After that, you’d typically be eligible for severance.

While you’re laid off, you can apply for employment insurance.

Or, beginning in April, you can apply for the federal government’s new emergency response benefit. This provides $2,000 a month for up to four months. It’s available to workers who still have their job but are not being paid because there isn’t sufficient work due to the coronavirus outbreak.

As well, those receiving EI or the new federal emergency benefit will be able to apply shortly for the BC emergency benefit for workers. This one-time $1,000 payment for workers affected by the pandemic will be made in May.

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

If you’re still working full-time, then cutting your salary in half would 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 be entitled to severance pay. But you may choose to discuss this 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 make up the lost salary. Or, check out the federal government’s emergency response benefit. This new benefit of $2,000 a month for up to four months is available to workers who are told not to come in because there isn’t sufficient work due to the coronavirus outbreak.

As well, be aware that those receiving EI or the federal emergency response benefit will be able to apply shortly for the BC emergency benefit for workers. This one-time $1,000 payment for workers affected by the pandemic will be made in May.

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.

Our laws prevent discrimination against workers if they have a disability. And it seems, at this time, that having COVID-19 amounts to a disability. So this means your employer can’t treat you differently than someone who doesn’t have it, without justification. 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 a 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. We’ve got step-by-step guidance on how to apply for EI.

As well, the federal government is rolling out a new emergency response benefit, beginning in April. It will be available for (among others) workers who are sick with COVID-19. It provides $2,000 a month for up to four months.

Also be aware that those receiving EI or the federal emergency response benefit will be able to apply shortly for the BC emergency benefit for workers. This one-time $1,000 payment for workers affected by the pandemic will be made in May.

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.  

However, the federal government’s new emergency response benefit is a game changer for self-employed people affected by the pandemic. This benefit provides $2,000 a month for up to four months to those who have stopped working for reasons related to the coronavirus outbreak. The benefit is available to self-employed people (including contract workers) who would not otherwise be eligible for EI. You can apply beginning in April.

Note as well that those receiving the federal emergency benefit (or EI) will be able to apply shortly for the BC emergency benefit for workers. This one-time $1,000 payment for workers affected by the pandemic will be made in May.

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.

Beginning in April, you can apply for the federal government’s emergency response benefit. This benefit provides $2,000 a month for up to four months. It’s 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. 

As well, those receiving the federal emergency benefit will be able to apply shortly for a one-time $1,000 emergency benefit from the BC government. Among those eligible for this benefit are parents who stay at home from work to care for children who are sick or affected by closures. The payment will be made in May.

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 (or 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.

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, have been in close contact with someone who has it, or if you recently arrived from abroad

More generally, the law in BC says you can refuse to work if it presents an “undue hazard” to the health and safety of any person. An undue hazard is an “unwarranted, inappropriate, excessive, or disproportionate” risk — one that is above and beyond the potential exposure someone would face through regular, day-to-day activity. This will depend highly on the situation. If possible, it’s best to discuss the situation and your concerns openly with your employer.

Home & neighbours

"My landlord sold their condo, and I was supposed to move out at the end of next month. But now, I’m self-isolating with a bad cough. I don’t think it’s responsible for me to move right now. I’m not sure who I can even get to help me move. I’m in a real bind here."

– Priya, Richmond

I won’t be able to make my next rent. Now what?

There is relief coming. The BC government has stepped in to help renters during the pandemic. But this doesn't mean that any rent you owe at this time just disappears. You should communicate with your landlord to discuss how you'll make your payments going forward, especially after the crisis is over.

As of April 1, individuals in subsidized or affordable housing can apply for a rent reduction. For renters not in subsidized or affordable housing, the BC government announced a new temporary rental supplement. A renter can get up to $500 a month towards rent, which will be paid directly to their landlord. It will be available to renters who are facing financial hardship as a result of the coronavirus outbreak, but do not qualify for existing rental assistance programs. Applications for the supplement will open soon on the BC Housing website.

The government is also freezing rent increases. Landlords can still notify you of a rent increase, but it can only come into effect after the crisis is over. Take a look at the government's Q&A for more details.

It’s important to understand that, as a renter, you still have to pay rent. Once the pandemic is over, rent increases are allowed. And if you haven’t paid rent during the pandemic, you can face eviction once it’s over. So, make sure to communicate with your landlord. Discuss your current situation and consider putting a plan in place for deferred rental payments so your expectations are aligned going forward.

Can I still get evicted?

Not likely. BC Housing issued a temporary moratorium on evictions for those living in subsidized or affordable housing. For other housing types (like market rentals), new measures include a halt on evictions. There are narrow exceptions — landlords can still apply for an eviction hearing in cases where it may be needed to protect health and safety or to prevent undue damage to the property. 

Once you’re up to speed on your rights (make sure to review those links above, and this helpful Q&A), best to communicate swiftly and calmly with your landlord through this difficult time

What if I can’t make my mortgage payments?

If you have a mortgage, there are steps you can take if you’re anticipating payment difficulties. You can also call your bank or credit union — many are offering payment deferrals. (But interest may still accrue on the balance; make sure you ask about that!)

If you’re bracing for extreme turbulence ahead, check out our step-by-step guide on your rights and options if you’re having difficulty paying your mortgage.

Can I get in legal trouble if I don’t practice “social distancing?”

It used to be a strong suggestion. But now, you can be fined or jailed if you don’t comply. 

Vancouver passed bylaws allowing its enforcement officers to fine people up to $1,000 for not following the city’s guidelines for social distancing. The provincial government followed suit, empowering community bylaw officers to enforce the social distancing orders, including the orders to stay back from others in public and limit the size of gatherings. 

And now any traveler returning from abroad must self-isolate (it’s no longer just a recommendation).

What are we doing for the most vulnerable members in our community?

The province has expanded bc211, a helpline that provides information about community, government and social services. Anyone in the province can now call 211 to learn where they can find help — and how they can offer help. For example, 211 is matching seniors with community volunteers who can help with groceries and staying connected.

For vulnerable segments of the population, authorities are relaxing some of the rules. For example, the province has introduced new clinical guidance to help reduce the risks to people who use substances. The guidance recommends that health care providers prescribe safe alternatives to the illegal drug supply.

Another example: shelters are exempt from the provincial order restricting gatherings with more than 50 people. Overdose prevention sites and supervised consumption sites are also exempt from this order, as they’re seen as an essential service.

Money & debt

“This pandemic has made everything come to a stop. Except for my bills of course. And money is tight now. With groceries, cleaning supplies, rent, and so many other pressures, it’s hard for me to prioritize what to pay first."

– Morgan, Vancouver

I’ve heard it’s possible to defer some bills?

Yes. BC Hydro customers can ask to defer payments or access grants to help pay their hydro bills.

Fortis BC is offering flexible payment options and waiving late payment fees for gas and electricity bills. And they won’t cut off anyone during the crisis.

ICBC customers can ask to defer monthly payments for up to 90 days with no penalty.

I may have to withdraw money on my credit card. What do I need to know?

Borrowing money from your credit card comes with fees and steep interest rates, upwards of 20% per year. Consider borrowing money from a friend or relative, or from a credit union or bank that offers lower interest rates. One option to consider is opening up a line of credit. We have resources on borrowing money and dealing with debt that might help as you consider your options. 

I’ve heard student loan payments may be frozen for a time?

Yes. Effective March 30, the federal government is placing a six-month interest-free freeze on all Canada student loans. No payment will be required and interest won’t add up during this time. Students don’t need to apply for the repayment pause.

The province is similarly freezing all BC student loan payments for six months, also effective March 30.

Is there relief to help low-income people?

A one-time enhancement to the climate action tax credit will be paid in July 2020 for moderate to low-income families. An adult will receive up to $218, and a child up to $64. (This is five times more than the three other payments in 2020 under this tax credit.)

Meanwhile, advocacy groups are teaming up to call on the provincial government for additional support during the pandemic for people who receive income assistance and disability assistance. For example: during the crisis, to stop deducting employment insurance benefits from welfare payments.

I can’t meet with my accountant or access my records, and I know I have to file my taxes soon. What can I do?

The federal government announced flexibility measures for taxpayers. This means you can file your taxes as late as June 1, and can pay any balance owing to the Canada Revenue Agency, without penalty, by August 31. 

You should still consider filing your taxes as early as you can if you expect a refund or want to make sure child benefits or other credits get properly calculated and applied. SimpleTax is an easy-to-use software for personal filers — no accountant needed!

Consumer

“I got a call from the 'Canada Health Authority' telling me I tested positive for COVID-19. They followed up with a text message saying I was eligible for government benefits. They asked for my Social Insurance Number and personal health number, to 'confirm my identity', as well as my credit card, to process my benefit payments. It sounded so official, but it must have been a scam. I've never been tested for COVID-19."

– Jasper, Golden

I’ve heard there are scams related to COVID-19. Is this true?

Sadly, yes. Fraudsters seek to profit from consumers' fears and uncertainties, and the spread of misinformation. Be alert. Especially for scams related to the new benefit programs announced by the government: be extra suspicious if a text message asks you for your personal information.

The Canadian Anti-Fraud Centre has a list of COVID-19 related scams to watch out for.

I’ve noticed people are selling things like toilet paper and hand sanitizer online at crazy prices. Is this legal?

When it comes down to it, if you’re willing to pay a premium for an item, it would likely be a valid contract.

Many of these “profiteers” try to re-sell these goods online. But lots of prominent retailers are refusing to allow this to happen. Some municipalities have levied fines. And you’ll notice that Canadian stores are now putting in limits on how many of these items you can buy at once, which has the support of the BC government.

I was supposed to take a flight this spring/summer, but may have to cancel or postpone. What are my rights?

Both WestJet and Air Canada have introduced flexible cancellation or rebooking policies at this time. They are waiving change fees or providing credit for future travel if you’d like to cancel. Best to try to accomplish as much as you can online — their call centers are likely overwhelmed. Although, if they have pleasant hold music, that can help pass the time in self-isolation.

What’s the situation with travel restrictions?

Canada has an official global travel advisory in effect: Avoid non-essential travel outside Canada until further notice. And avoid cruise ship travel.

As of March 25, all travellers to Canada must self-isolate for 14 days. As of March 30, domestic travel is restricted for people with COVID-19 symptoms. Anyone showing signs of the virus can’t travel by air or by rail between provinces and cities anywhere in Canada.

All foreign nationals, including US nationals, are prohibited from entering Canada for non-essential travel.

If I can’t sign something in person, like a contract or a will, what are my options?

There are online services available, like DocuSign or HelloSign, that make online signing easy and efficient. For some documents, like a will, you may need to have witnesses. In that case, if the document is urgent, consider having only household members acting as witnesses to your documents to encourage proper social distancing. It may be best to ask a lawyer or notary public for specific advice here, since some documents have very particular requirements for in-person signatures or witnessing.

Business

I run a small print shop over in East Vancouver. I’ve had to lay off a few employees. I’m still open, but just barely keeping the lights on. One of my biggest clients owes me a bunch of money, but now says they won’t pay me this month."

– Sydney, Vancouver

I’m a small business owner. A client has refused to pay me, using the coronavirus outbreak as their reason. Can they do this?

This can depend. If you have a written contract with this client, check to see if there is a “force majeure” clause. Often called an “Act of God” clause, it may let people get out of their contractual duties because of an unforseen event beyond their control. But it’s not for certain. It often requires a reasonable level of effort by both parties to mitigate their situation. 

This is a tough time for everyone. Best to communicate openly, either orally or in writing, to try to reach a compromise

I’ve heard there’s government help available for small business owners?

The federal government has put in measures to help businesses. There are programs to expand loans. There are tax deferrals. And there’s a 75% wage subsidy for small businesses, for up to three months, retroactive to March 15. Meaning: the government will pay the business 75% of their employee wages (up to certain maximums). The intent is to help businesses to keep workers (or re-hire ones that have been laid off) during the crisis.

I’m a small business owner that has had to close. Can my landlord still make me pay rent?

Probably yes. First, consult your lease, and see if there’s any clause that you can point out that can relieve you of the obligation to pay rent during the pandemic. No matter what, try to keep communication lines open. Your landlord is no doubt aware of the situation. Perhaps you can defer the rent payment, or agree to just pay a part of it for a few months. 

If you have insurance, call your broker. It may be that you’re covered for business interruption insurance and can make a claim for compensation at this time.

Otherwise, the Business Development Bank of Canada has an emergency loan program for entrepreneurs. Take a look at the federal government announcement on how they intend to support businesses, including tax deferrals and paying part of employee wages.

Courts & legal services

My child support case is supposed to be heard in Provincial Court very soon. But with so many things closing down to fight the spread of the virus, I don’t know if my hearing is still going to happen. Will it be postponed?"

– Rae, Coquitlam

Is the courthouse open? If I have a case coming up, will it be postponed?

Courts have suspended regular operations at all locations in BC. Urgent matters are being heard in selected court locations. Some matters are proceeding by telephone. Other hearings are postponed and will be rescheduled. For Provincial Court matters, please consult their notice. Notices have also been issued by the Supreme Court and Appeals Court

The Civil Resolution Tribunal continues to operate normally, though it is extending some timelines. This online tribunal handles small claims matters under $5,000 and certain other types of disputes.

What if I’m running out of time to file a claim?

The province has issued an order suspending all limitation periods and time periods for starting a claim or bringing an appeal in a civil or family court matter. The suspension is effective as of March 26, 2020 and continues until the state of emergency regarding the coronavirus ends.

Are law offices open for business?

The provincial government has designated legal services and the work of lawyers, notaries, and paralegals to be essential services. Their offices are permitted to remain open, but they must follow the orders and guidance of the provincial health authorities. Like others, they are being advised to use remote practices wherever feasible.

What about legal aid?

Legal Aid BC continues to provide legal aid services, but by phone only. if you live in a community where there is a local agent, call the agent's office to apply for legal aid. Legal Aid BC’s online services remain open, such as the LiveHelp chat service on their Family Law website.

Can I still access low-cost or free legal services?

Yes, but they are adapting their services at this time. Access Pro Bono is ramping up their telephone advice service. PovNet is tracking service changes for advocates province-wide.

Is the land registry open for business?

At BC’s land title authority, front counter services are closed. But you can still register property sales and other title interests through their online services.

Other resources

Courthouse Libraries has set up a wiki page aggregating coronavirus resources, featuring hotline numbers and changes to legal services.

PovNet lists coronavirus resources impacting government benefits, health, housing, and money issues — and including notable breaks being given by certain businesses to consumers (like internet providers). They’ve also put together a primer on how to effectively work remotely.

Legal Aid BC continues to provide services over the phone at 604-408-2172 or 1-866-577-2525. You can also visit their website for a list of service locations and their phone numbers. Their legal information outreach workers can provide information by phone on coronavirus-related legal issues.

Justice Education Society is helping with coronavirus-related legal questions on its Ask JES phone and chat lines. Call or text 1-855-875-8867 or access live chat between 11 am and 2 pm Monday to Friday.

People’s Law School has trusted information on everyday legal issues that are heavily in play during the coronavirus outbreak. We’ve linked to a few of our pages above; you can check out our full resources on work, money & debt and consumer issues. You can also send our team a question if you can’t find what you’re searching for.

Who’s Covered by BC’s Employment Standards Law

Learn if you’re protected under BC’s employment standards law. 

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The main provincial law that protects workers in British Columbia is called the Employment Standards Act. It sets minimum standards for wages and working conditions. However, some workers are excluded from the protection of this law, or parts of it. Your rights in the workplace and your options to deal with problems depend on whether or not you’re covered. Learn if you’re protected under BC’s employment standards law. 

Most workers are covered

“I work two jobs. One of my employers said I wasn’t entitled to extra pay for working on stat holidays, as I was an ‘independent contractor.’ I made a complaint to the Employment Standards Branch. They found the Employment Standards Act applies to me. They said if there’s any doubt whether an exception to the Act applies, it’s resolved in favour of the worker.”

– Melissa, Burnaby

The Employment Standards Act applies to employees. The definition of who is an employee is very broad. It’s intended to cover as many work relationships as possible. 

You’re seen to be an employee under this law if any of the following apply:

  • You perform work for another for wages. It doesn’t matter how many hours you work or if your job is permanent or temporary. 
  • An employer allows you to perform work normally done by an employee. This can be done directly or indirectly. For example, if an employee asks you to cover their shift, you’re an employee. Even if your employer doesn’t know about this arrangement. 
  • You’re being trained by an employer for their business. This includes a trial period for a prospective employee.
  • You’re on leave from an employer. This includes maternity or parental leave, or illness or injury leave.
  • You have a right of recall. This can come up if you’re temporarily laid off. It means you get to return to work.

If you meet the definition of employee, you’re covered by the Employment Standards Act unless an exception applies. There are a number of exceptions. We explain them below. 

If there’s any doubt whether an exception to the Employment Standards Act applies, it is resolved in favour of the worker. The Act applies.

Exception if you work as an independent contractor

The Employment Standards Act doesn’t cover independent contractors. An independent contractor is seen to be self-employed (and so not an “employee”). In other words, they run their own business.  

Figuring out whether someone is an employee or an independent contractor can be tricky. 

Factors in play

There are several factors to consider. An employee (as defined in the Act) is a person “entitled to wages for work performed for another.” An employer is a person who has “control or direction of an employee.”  

The topic of direction and control is important. Does the person paying you direct the work and say how it’s done? If the answer is “Yes,” that leans towards you being seen as an employee. 

Independent contractors are less controlled by the employer. A contractor would be more likely to set their own hours, determine how to perform the work, and provide their own equipment. 

A contractor also shares more of the risk. They’re more likely to be financially affected than an employee if the business does well or poorly.

Other factors include:

  • Clients. Is the person paying you your only gig or one of many? 
  • Ongoing relationship. Have you worked for them for a long time?
  • Connection to business. Is the work you do closely connected to the purpose of the business? 

More “Yes” answers mean you are more likely to be seen as an employee than as an independent contractor.

Some examples

The Employment Standards Branch is the government office that enforces the Act. They provide helpful examples of how they decide this question. Any doubt is resolved in favour of the worker. The Act is intended to protect as many workers as possible. 

Is someone an independent contractor or an employee?

Factor

Independent contractor

Employee

Degree of direction and control

Less controlled by the employer. Person might set their own hours, determine how to perform the work, provide their own equipment, and hire their own helpers.

More controlled by the employer, who sets hours, decides how work should be performed, and provides equipment.

Ongoing relationship

Is hired to do a specific time-limited job.

Is in an ongoing working relationship. 

Connection to business

Has a number of clients.

Relies on a single employer or business as their primary or sole source of income.

Risk

More chance of profit and risk of loss.

Less (or no) chance of profit or loss.

Calling someone an independent contractor doesn’t mean they are. Even if you sign something saying you’re an independent contractor, you may still be an employee under the law. Any agreement that tries to get around the requirements of the Employment Standards Act is not valid. 

Exception if you work in a federally-regulated workplace

If you work for an employer regulated by the federal government, you are not covered by the Employment Standards Act. Instead, a federal law called the Canada Labour Code applies. Around 6% of Canadian workers fall into this category.

Which employers are federally regulated? Examples include banks, airlines, and telecoms. The Canadian government website lists federally-regulated businesses and industries.

There are many similarities in how the Employment Standards Act and the Canada Labour Code protect workers. Both, for example, have rules for minimum wage, overtime pay, and holidays. But there are also important differences, especially for workers fired without cause.

If you work in a federally-regulated workplace, Employment and Social Development Canada can help you understand your rights in the workplace.

Exception if you work in certain licensed professions

The Employment Standards Act doesn’t apply to people working in certain licensed professions. Examples include doctors, dentists, lawyers, accountants, architects, engineers and realtors. The Employment Standards Branch lists the professions not covered by the Act

This doesn’t mean these professionals have no rights at the workplace. Other provincial laws, such as human rights laws and workers compensation laws, still apply — even though the Employment Standards Act doesn’t.

If you work in a licensed profession not covered by the Employment Standards Act, the body that regulates the profession can help you understand your rights in the workplace. For example, the Architectural Institute of British Columbia regulates architects in the province.

Exception if you’re a student, a babysitter, or enrolled in certain government incentive programs

The Employment Standards Act does not apply to students working in certain jobs:

  • secondary-school students working at their school or in work-study programs
  • primary- or secondary-school students working as newspaper carriers 15 hours a week or fewer

The Act doesn’t apply to babysitters. A babysitter is someone employed solely to attend to a child or other person in someone else’s private residence. It’s not someone working in a day care facility. 

The Act doesn’t apply to people who are in certain government incentive programs while receiving income assistance, disability benefits, or Employment Insurance. 

The Employment Standards Branch provides details of each of these categories.

If you’re a member of a union

Workers who belong to unions are covered by the collective agreements negotiated between their union and employer. Any collective agreement made or renewed after May 30, 2019 must meet or exceed the minimum standards of the Employment Standards Act in a number of areas. These include: 

  • hours of work and overtime 
  • statutory holidays 
  • annual vacation and vacation pay 
  • minimum notice provisions 

If provisions of the collective agreement fall below those minimum standards, then the Act applies instead.

If you belong to a union, speak with your union representative to learn about your rights in the workplace. 

If you work in an occupation that’s partially excluded from the Act

Some occupations fall partly outside the Employment Standards Act. This means some of the laws apply to these occupations but others do not. Here are some examples. The Employment Standards Branch provides a full list of occupations that are excluded from parts of the Act

High-tech professionals

A “high-tech professional” is excluded from the sections of the Act dealing with hours of work, overtime, and statutory holiday entitlements. The Employment Standards Branch explains who this applies to.

Silviculture workers

Silviculture workers (workers involved in reforestation) who are paid “primarily on a piece-rate basis” are excluded from some provisions of the Act dealing with split shifts, hours of work, and overtime. The Employment Standards Branch provides details

Farm workers

Farm workers are excluded from some sections of the Act, such as the statutory holiday entitlements. The Employment Standards Branch explains how the Act applies to farm workers.

Fin fish farm workers also have specific sections of the Act, involving work hours and overtime, that don’t apply. The Branch provides details.

Commissioned salespeople

Workers paid on a commission or incentive basis are excluded from specific sections of the Act, including the overtime requirements. The Branch provides details.

If you’re a manager

Managers are excluded from the parts of the Employment Standards Act that cover hours of work, overtime, and statutory holiday pay. They are otherwise covered (if none of the other exceptions apply).

A manager is defined as a person:

  • whose main duties are supervising or directing human or other resources, or
  • employed as an executive.

Key considerations in determining if someone is a manager are:

  • How much can they “materially and substantially” affect the employment conditions of those for whose work they are responsible?
  • What kind of responsibilities do they have with respect to company resources?

The title “manager” doesn’t legally make someone a manager. Nor does it matter if other workers refer to a person as a “manager.”

The Employment Standards Branch provides more detail on what goes into determining if someone is a manager.

If you’re not covered by employment standards legislation

Just because you’re not covered by the Employment Standards Act doesn’t mean you have no rights as a worker. Other laws apply to those who are excluded from the Act. For example, human rights laws protect all workers from discrimination. 

If you feel your rights have been violated at work, seeking legal advice can help. It’s a way to better understand which laws apply to you and what your options are to resolve your dispute. There are options for free or low-cost legal advice.