We understand that the uncertainty surrounding COVID-19 presents a challenging situation for many employers. We have prepared the following as general legal information based on what we know about the situation as of March 23, 2020. However, each workplace is different and can be impacted differently in this time, and we encourage you to obtain legal advice that is tailored to your particular situation. Please contact Patterson Law’s Labour and Employment team if you would like to discuss further.
Employers may have existing policies that already address some of the concerns raised by COVID-19 (for example, sick leave policies or remote working policies). You should review those policies for guidance, but also consider whether your policies are consistent with current federal and provincial government direction.
Q: I have employees who are away from work due to COVID-19, do they have to be paid?
This is a straightforward question with a complex answer. In general, if an employee is away from work at the employee’s own request or based on a government directive over which the employer has no control, then they do not need to be paid. However, if the employer is asking the employee to stay away from work out of an abundance of caution, or is choosing to go above and beyond government directives by asking employees to stay home, then the employee should be paid at their regular rate of pay, for their regular hours.
We have provided guidance regarding some specific situations in the questions that follow.
Q: I have employees who are required to self-isolate after travel or contact, and cannot report to work. What are my obligations?
Employers should review the employee’s duties and consider whether the employee can reasonably work remotely while in self-isolation and whether there is work for the employee to do, and if so, what supports are needed (see a further question on this topic below). If the employer asks the employee to work remotely while they are on isolation, then they should be paid for that work.
If the employee appears healthy but cannot report to work because of a self-isolation restriction put in place by the government, then the employer is not required to pay the employee while they are not attending work and not performing work duties. In this case, the employer should promptly issue the employee’s Record of Employment, so that the employee can apply for access to Employment Insurance. We recommend issuing ROEs in electronic format (rather than paper), since electronic ROEs can likely be processed more quickly by Service Canada.
Q: What about employees who do not want to report to work because of concerns about their own health, or that of family members?
If employees are presenting symptoms of any illness, they should stay home and their time off should be managed through the employer’s regular sick time policies or practices. However, given the current strain on the health care system, the Province of Nova Scotia has ordered that employers not ask employees for doctor’s notes at this time.
If employees are requesting time off because they are practicing social distancing, then employers are not required to pay for this time.
If employees ask to use accrued vacation or other paid leave time, rather than taking unpaid leave, employers should accommodate wherever possible.
Q: If an employee is away from work, when should I issue their Record of Employment? What coding should I use on their ROE?
An employer is required to issue an ROE any time there is an “interruption of earnings”, which is defined in the Employment Insurance Regulations as being any period during which the employee does not work for pay for seven or more consecutive days.
Regarding coding, Service Canada must make the final determination as to what is correct. If none of the available codes appear to describe the situation, employers can use Code K (Other) and supply an explanation. However, Service Canada has issued specific guidance regarding some particular coronavirus-related situations, which should be used where applicable:
Q: Will my employees be eligible for Employment Insurance?
Service Canada will make the final determination on employment insurance. However, an employee with the minimum number of insurable hours who has been laid off for reasons relating to shortage of work or health and safety should qualify for employment insurance. The Federal Government has waived the one-week waiting period for EI for those on mandated self-isolation.
On March 18, 2020, the Federal Government announced additional funding for employees who have experienced a shortage of work related to COVID-19, but who would not otherwise qualify for EI. The contents of this release may be found here, and further details are to come: https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html
Q: Can I tell my employees to stay home because they have been travelling out of province? What about older employees who are at higher risk?
On March 22, 2020, the Provincial Government announced a mandatory self-isolation period for all individuals returning from out-of-province. If your employee does not fall within these exceptions, then they are being ordered to stay home and self-isolate, and do not need to be paid, unless you are asking them to work remotely. If you go further, for example by asking employees to stay home because they live with some who has been travelling out of province, this is exceeding current federal and provincial restrictions. You would therefore need to pay employees for this time.
Telling older employees to stay home from work, even if done with good intentions, is a violation of the Human Rights Act, which prohibits discrimination on the basis of age in the course of employment. The same goes for discrimination against employees of a certain ethnic or national origin.
Q: What do I need to think about when employees are working remotely?
If you have determined that it makes sense for your organization to have an employee work remotely, you will also need to assess what the employee needs to do their job. For example, do they need access to a computer, phone line, scanner, printer, fax, high-speed internet? Do they need to access your company intranet or shared drive?
If they do need access to a computer and phone, does it make sense to use their personal equipment? If they are dealing with personal, sensitive or confidential information, you should ensure that there are mechanisms in place to keep that information secure. You should consider whether their personal equipment has sufficient security and processing capabilities, is physically private (in a home office, not shared with other family members), and has the correct software installed for the employee to complete their required duties. The employer may choose to provide any required equipment or supplies (such as printer paper, computer cables, etc.), or you may choose to reimburse employees within a reasonable time.
You should also consider how and how often your employees should be tracking and reporting their hours and activities while working remotely.
Q: We have been advised to practice social distancing, including maintaining personal distances. What if this is not possible at the workplace?
Currently, the Province has stated that any workplace or business that is not deemed an essential service may remain open as long as social distancing of two metres (6 feet) can be maintained, although certain types of businesses, such as bars and salons, have been ordered closed. Businesses are also required to be cleaned and disinfect at least twice daily, and employees must follow proper hygiene. This means that employers must take steps to minimize social contact in the workplace. For example, most meetings should be taking place by phone call or videoconferencing. Employees and clients should be advised not to shake hands. Employers should also ensure that cleaning procedures are documented. Businesses violating the Province’s order may face fines of $7,500 per day.
Employers also have an obligation to provide a safe workplace, under the Occupational Health and Safety Act. You should keep apprised of current medical information and advice being provided by the Nova Scotia Department of Health and Wellness and Health Canada, and assess whether you are able to continue to meet this obligation in your workplace. If you have any questions, you should consult a lawyer for advice about your particular situation.
Q: What should I do if I need to lay employees off temporarily?
Prior to making a decision to lay employees off, employers should conduct a thorough review of all potential options and consider the business case for each, and they should document this review. For example, depending on the nature of the employer’s business, the employer could consider the following:
• asking employees to work from home;
• reducing hours;
• offering additional online services rather than in-person services;
• staggering shifts so that fewer employees are in the office at any one time; or
• reviewing government programs such as Work-Sharing
If you determine that layoffs are the only reasonable option, then you should give the employees formal written notice as soon as reasonably possible. Under the Labour Standards Code, a layoff of up to six consecutive days do not have a required minimum period of notice or payment in lieu of notice (although there may be potential common law notice liability for any interruption of work). If the layoff will be longer than six days, which appears likely based on current public health information, then you should consult a lawyer to determine whether you have potential additional payment in lieu of notice or severance obligations to your employees.
Q: I don’t know how long social distancing or government restrictions will last. How do I determine what to tell employees about layoffs?
At this point in time, no one is certain how events will unfold with COVID-19. If you determine that layoffs are necessary, for business, health and safety, or regulatory reasons, then you should give your employees as much written notice as possible, and make sure that you have up-to-date contact information so that you can provide them with updates. For example, if you initially announce a layoff of two weeks, but determine at a later date that it needs to be extended, you should let your employees know, in writing, as soon as you make that determination. Do not wait until the last minute.
Keeping your employees informed helps them manage their own personal stress in these uncertain times, and also minimizes the potential for legal action in the future.
This document contains general legal information and was authored by Patterson Law’s Labour and Employment lawyers, Dennis J. James, Q.C., Anna-Marie Manley and Jennifer Singh. Please reach out to us with any questions you may have. Call 1.888.897.2001