Max: Okay, thanks. Looks like our participant numbers have settled in so we'll get started. Thank you very much for taking the time to join us today. My name is Max Brunette and I'm with my colleague, Amy-Lynn Kosick. We're both members of Gowling WLG's employment and labour group in Western Canada. We both are called and split our time between Vancouver and Calgary. So we appreciate you joining us today. Just a brief bit of background on us. Amy's been practicing for about 10 years. I've been practicing for about 20. As probably assumed, management side, employment and labour lawyers. We act on behalf of a number of national or multi-national or international corporations as well as small and medium businesses, different sizes. We're hoping to chat to you about today's, largely, it's been unfortunately a very busy year in the employment law space with the pandemic. We've seen some trends over the course of the year and some issues that are commonly coming up in the context of the pandemic. So why we thought this might be topical now is the early days of the COVID-19 pandemic, and I would describe that as March, April and May, we saw for our practice just a huge influx of employers forced into situations where they either had to let employees go. They had to consider temporary layoff measures that were available to them or they had to look at other cost cutting measures such as salary reductions or compensation reductions to survive through that pandemic time. So, that was really quite hit a crest, I would say in about April or May, and then through the course of the summer, obviously that was good news, more of a good news story. There was more hiring going on as far as we could tell and less layoff, reduction, termination type activity but what we're seeing now is with the apparent second wave upon us and what looks to be more potential restrictions on employer's ability to operate or the public's ability to move about. Perhaps coming down the pipe in different jurisdictions were starting to get more of those calls in terms of how do we manage through this if it's another few months of restricted activity.
So, we're going to cover a few topics and if I could maybe jump over to slide two there. Some of the issues and challenges we've seen with respect to workplace reorganizations. We'll talk about a topic that's come up quite a bit and that is employee considerations. You know what do you do, for example, with employees who have child care responsibility forced upon them, or simply refuse to return to work because they have a perception of safety in workplace, and then we'll talk a little bit about, and this could really be a topic altogether, number three, but some of your safety and privacy considerations. What's WorkSafeBC saying with respect to your COVID-19 safety plans that you need to have in place and whether or not we're seeing an increased trend in inspections and that sort of thing. We hope this has got some useful tidbits throughout the course of our chat today. Amy and I will probably talk for approximately 30 to 40 minutes and we'll leave some time on the back end for questions. We've got a Q&A that you can enter your questions in at the bottom of the screen and we'll do our best, despite both being technological luddites, we will do our best to field those questions and get you some answers. But if we don't certainly do not hesitate to follow up with us.
If I could jump over to slide three. So what are the primary things that we've seen this year? I've crossed off the client. I would say this, it's not been industry specific. I've seen it across retail, agriculture, energy, industrial services, supply services. I haven't seen one sector of our cliental that hasn't had some COVID impact and been forced to make some level of restructuring changes. So it's been quite wide spread and pervasive, in terms of its impact, at least anecdotally from our perspective. If we could jump over to slide four and through slide five, please. Next one. Thank you.
Now I don't purport to really go through the termination basics in much detail here. I think many people who are joining us for the webinar will be aware that if you're forced into a situation where layoffs and permanent terminations become a reality for you, I think most people know you've got an obligation to payout under the statute, and in addition pay some amount of common law notice. Of course if you have a contract or an employment contract in place that has a severance clause you'll want to rely upon that. So good news if you have that. I would say, as an aside, when there's tough times like this and a greater number of reductions, plaintiff counsel get more creative in terms of how they look to tax severance offers that have been put out. Whether that's attacking the value of the offer that you've provided. We see that a lot. I don't think I've seen it a demand letter in the last six months that hasn't suggested that the COVID-19 pandemic creates some mitigation issue, in the sense that it is more difficult for employees to find work during a down turn like this, so each and every plaintiff counsel is putting that into a demand letter these days. Seeking an extension of the notice period. So to the extent you do not have an employment contract in place and you've gone through the process of making an offer, somebody that incorporates a statute and sets some common law amount of notice, be prepared for that ask on the extended notice period due to COVID-19. We can say, generally speaking, that courts will sometimes consider the current economic climate and the job opportunities available as a factor that may extend the notice period. But the cases on point I would describe it not to be necessarily material extensions of that notice period. I find most time the pieces I've looked at, 1 to 3 months, we're not looking at a doubling of notice periods. We've been keeping on an eye out to see if there's any judgments that have come down the pipe, or a judge has specifically incorporated the pandemic and to an extension of the notice period, haven't seen anything yet in BC. Knock on wood on that point. But that's not to say that it's coming. The decisions and their release are always a bit delayed, and this sort of stuff is probably working its way through the system right now, so I wouldn't be surprised to see some more noteworthy decisions on that point coming out in the fall. So stay tuned on that piece. Maybe we'll jump over to the next slide.
The other aspect we're seeing is, and this I don't think is COVID-19 driven, but to the extent you have to give terminations and you're seeking to rely upon a contractual severance clause, we see all sorts of different lines of attacks on the clauses these days. It's often a two pronged attack which is your clause has some level of ambiguity in it. I think many people who are joining us today would be familiar with some of these. The idea is if you're seeking to rely on a clause that prescribes a rate of severance you're wording has to be absolutely clear and you ensure that you're complying with the statute. So plaintiff and plaintiff counsel are very creative about different ways to attack it, and I feel like Ontario is putting out a decision pretty much every other month where some ambiguity has been found in a clause and the clause has been held void, and the corresponding reality is plaintiff counsel jump all over that so we've seen lots of different attacks right now on employment clauses. That's not to say you have to fold the tent. Your clause may be better than some of the more dated ones. You can always take the position that it's binding and force the employee into a position of litigating, both the validity of the clause which is not necessarily an easy thing to do, but I would say as a general rule if you are using these clauses take a peek at them. See what they look like. See what the language looks like because, frankly, we're updating ours every 6 months based on the latest case law. If you are finding yourself where the second wave, the pandemic, is going to put you into termination scenarios this fall think about the validity of your contracts and whether or not they're going to stand up to challenge. If things are more dire and you're looking at a situation where you may be dealing with group terminations, BC has some very specific rules with respect to the amount of notice that needs to be provided, and you want to make sure that you're paying attention to this. If we could jump over to slide eight. They are, I would say, somewhat onerous notice requirements. So if you find yourself having to go through a major layoff the numbers are there in front of you. It's 8 weeks for termination for 50 to 100 employees. 12 for 101 - 300 and 16 weeks before that. The real kicker here is, the way these provisions used to work across most of the country was in reality the group termination notice was to give the Ministers, to give the government a heads up that they may be dealing with noteworthy terminations, potential increased uptick on people claiming EI and really just more of an administrative thing, but over time they've been given more teeth. So if you miss these notice requirements you can find yourself having to add that on to whatever else you're going to owe. If you miss the 16 weeks you're going to have to cut a cheque for 16 weeks at termination date, plus the individual notice required under the code, plus whatever your common law notice is. In BC this has got some teeth, so if you're in the unfortunate situation of having to deal with this, please do think about it because it can become quite costly if you miss it. Could we jump over to the next slide.
Now, two things to note. Both with respect to group terminations and individual terminations is that the BC government, actually let me step back. One issue on the group terminations to think about is the concept of single location. This is an issue that we've looked at, at some level of detail, so it maybe the case. If you think about a situation where you've got, let's say you're in retail, and you've got 12 locations across Metro Vancouver. It is arguable that each, and let's say it's a store closure right across the board, close all 12, we think you can reasonably take the position, assuming that each location has some standalone characteristics to it, its own supervisors, its own managers, that all of them should not be aggregated and that each location could be considered in its own. So while all 12 closed across Metro Van might trip you over 50, if there's some level of independence amongst those stores, we think you have a decent argument to say that the group termination provisions don't apply. We had to look at that in that very context and the conclusion we came to, there's not a lot of great case law out there on that point, but it's really going to come down to a matter of each store standalone independent. Think about that if that becomes an issue. In another interesting feature to the ESA with respect to some publications put out by the BC government early this year is the thought or the concept of, if you do find yourself at the end of a termination scenario, whether or not you can rely on, essentially, the frustration provisions of the Act. You can see it highlighted there at D, okay. It says, "Employed under an employment contract that's impossible to perform due to unforeseeable events or circumstance." So really what the government is saying, what Employment Standards is saying there is, if you've been shuttered by virtue of the pandemic Public Health orders, certain tourism businesses might come to mind, gyms, for example something like that, you might have an option here where you don't have to provide the statutory termination notice or the group termination notice. I would argue the adjunct to that, or the build on to that, is that you'd be seeking to make that some argument with respect to any common law notice, or the employees if you're in a termination scenario, or perhaps even the contractual notice that's owed. Of course that'll be somewhat dependent on the language of your contract. If we could jump over to the next slide.
Be careful here. Anytime a client calls me and wants to talk about frustration as a potential out, to whether or not it's severance, it's always a cautionary tale and I always say, "Look, you've got to tread lightly in this area." We think the same is still going to apply with respect to this statutory exception if you seek to rely on it. If we could jump over to the next slide.
The government of BC really has actually put out some guidelines. I was looking for cases last night and this morning to see if anything's come out that really tests this yet. I couldn't find anything on my last run through. But we did find some guidelines here. So you can see them set out and it's an establishment that you're unable to open as a result of a Public Health order is one, you're unable to adapt Public Health guidelines. That would be a trickier one. A trickier fight to get into, I think, depending on the nature of your business. The third is that you've had permanent closures. So permanent closures, if you're in that unfortunate situation, you've probably got a better argument there. But as an example, if you were teetering on the edge of bankruptcy or significant financial trouble pre-COVID and COVID was what pushed you over the edge, that may not be something that was unforeseeable. So you may find yourself in a more difficult situation there. Or if you're a multi-national or national organization, and the decision is the vast majority of your operations are continuing at different locations but there's some geographical component as to why you're getting out in Vancouver or the Interior of BC, be prepared to be challenged on that front. So we don't think these are necessarily going to be easy cases to win except in, I would say, the more obvious or more dire circumstances. Certainly if you're a smaller business or a medium sized business, and the impact of the pandemic is obvious, we think you're going to get a better shake from an adjudicator here. If you're a multi-national, national, that might be a tougher putt based on your overall financial health and you're going to have to split out the objective financial data for the region to really demonstrate and show trouble on that front. So that's our expectation there. If we could jump over to the next slide.
I've talked a little bit about terminations. If you're in that unfortunate reality of having to cut back on some of your work force those are some key issues to think about that we've seen pop up over the pandemic. One tool that a lot of our clients utilized through the pandemic, and may be looking at again as the second wave gathers steam, is temporary layoffs. I'm going to turn this over to Amy who's going to walk you through how you can utilize these provisions, potentially to your advantage, to stave off terminations if possible.
Amy: Thanks, Max. The temporary layoffs were a pretty popular topic when we first saw the pandemic coming out, and we've seen that peter off a little bit, and I'll kind of talk about why. As Max mentioned this may be something we see a resurgence of depending on how the pandemic turns. Basically for our purposes, under the ESA the main concern is that temporary layoffs, any layoff, you're permitted to do it for up to 13 weeks in a 20 week period. So that's the general rule and we'll talk about how that was modified in a second. We should also be aware that aside from unilaterally or by agreement putting someone on temporary layoff, if you end up providing the employee with less work such that they're earnings decrease by 50%, that could also constitute a layoff. We've seen that happen as a result of some of the other changes employers have been implementing, or tried to implement, including salary reductions and we're going to talk about salary reductions as well, but just be aware that you may accidently or inadvertently trigger a layoff provision if you're going down that road. In BC there's not a statutory notice requirement for temporary layoffs. I just wanted to point that out because in some of the other Provinces you do have to provide 1 to 2 weeks notice in most circumstances for a layoff, for example in Alberta, but in BC you could make it effective immediately. Also, you can apply to variances to vary the time period that you can layoff employees, and I'll talk about that more in a minute, but that's a pretty specific procedure that you have to contact the Director of Employment Standards to do. If we can go to the next slide.
One of the things I just want to highlight, and again we'll talk about this a little more, is something called constructive dismissal. Essentially if you don't have a right to layoff in your agreement, which many employers do not, then it can bring about a risk of constructive dismissal. Obviously, prior to the pandemic, most employers who had cyclical employees have these layoff provisions. But may employers didn't because their reductions in workforce were permanent as opposed to temporary and we're seeing a lot more employers having to rely on layoffs as a result of the pandemic. But unfortunately they're not in their employment agreements and that does trigger a risk of constructive dismissal. If you can just go to the next slide.
I just wanted to talk about some of the variances that were put into place to address the pandemic including increases to the temporary layoff period. So the first one that kicked in in May it extended the layoff period to 16 weeks in a 20 week period. We then saw in June an additional extension to 24 weeks in a 28 week period, however, all of these extensions ended August 30. There was a limited time where you could apply to the Director to vary the, it's actually the end date of August 30, but that was a hard deadline that you had to apply for that variance by August 30. So now we're back to business as usual which is 13 weeks in a 20 week period and if you need more than that you're going to have to apply specifically for a variance. We can just go to the next slide.
This is basically what I was touching on. Just that if it's not in your contract there's a risk of constructive dismissal. Again, in order to claim this constructive dismissal you have to have an employee effectively quit and allege termination. What we saw through the pandemic was sort of, what I would term, a bit of a unique situation. Many employees did not want to quit and allege constructive dismissal, notwithstanding that they didn't have contractual rights, or that they hadn't subsequently agreed to the layoff. That's just, I think, simply because there's not a lot of other job opportunities for them around and most employees are banking on being recalled. I would say that there's a fair amount of employees that go away with layoffs notwithstanding they're not in the their contracts. That being said I do currently have on my desk a number of claims from employee and plaintiff side counsel relating to the layoffs and claiming that there was breaches of contract as a result of that. In fact some of these claims have resulted where employees haven't been recalled after the layoff. That's primarily where I'm seeing them and they're trying to seek to invalidate termination provisions on that basis. Whether or not that'll be successful is another story. Needless to say, as Max said, we're seeing plaintiff and employee counsel take harder runs at these things so just be aware if it's not in your agreements, or the employee hasn't consented to it, there is definitely a legitimate risk of constructive dismissal there. If we can go to the next slide.
Just to give you a broader idea of what constructive dismissal is, because it's going to touch on my next topic as well, it's a unilateral change to a fundamental term of employment that the employee doesn't agree to. That can vary from many things but it does encompass layoffs and it will also encompass salary reductions. Which brings us to the next topic so if we can go to slide twenty.
Many employers we've talked about have turned to reductions in salaries, freezing of bonuses, alterations to calculations of benefits. We've seen a wide variety of sort of modifications to salaries being proposed. Some of them have been done with consent of employees, which is fine, and some of them have not. Where it has not, employers should be aware that in general compensation is viewed as one of the most fundamental terms of an employment relationship, and so there may be a risk of constructive dismissal. And I say maybe because it really depends on the total overall reduction and compensation you're seeing. So we're not just looking at base salary or benefits. We're looking at the whole package and how much are you decreasing. We generally like to look at it as on a percentage basis. There isn't a bright line, so to speak, of exactly what salary reduction will trigger you into a constructive dismissal. If you turn to the next slide, you can see here we've kind of outlined some of the basics of it and some case law where they've said 25% is and 9 to 4 is not. The case law is not completely consistent. We do find that salary reductions exceeding 10%, in general, carry with them a high risk of constructive dismissal, but it is a gray area. Anything below 10% we view as a lower risk. It's kind of viewed as a minor loss of income. So it's important to look at that and also the type of compensation you're impacting. So base salaries viewed more critically. You'll also want to look at whether there were discretionary or past practices with respect to changes in the compensation. So there's some pretty strong case law indicating, for example, if you had a history of modifying your RRSP contributions or not awarding bonuses during times when the companies were not performing well, that's not going to trip you into the constructive dismissal area.
Max: I might just add one quick point to that, Amy, and that is anecdotally I've seen unilaterally imposed reductions of pushing up to 20% in different sectors, over the past year. Ordinarily we'd tell you, right off the hop, you're in pretty fertile ground for a constructive dismissal complaint. But what we're finding, frankly, I think I've seen two claims out of a huge number of employees who've been impacted by reductions of that nature. Really a lot of it just comes down to strategically how do you implement it and a lot comes down to the messaging that's used, right? So, what I've seen done effectively is employers will announce to the workforce that, "We need you to partner with us through this difficult period. This is intended to be temporary so for the 2020 fiscal, or for the next 6 months, we're implementing this reduction but the minute we think we've got stability, or things are back no track, we'll be pulling that back." So you'll get a lot of partnership on that. I guess what I would say is where you've got to watch a little bit is if you initially position it as temporary, and then it becomes permanent, obviously you're back into fertile ground for constructive dismissal complaint. But ordinarily, another thing to think about the constructive dismissal space is condonation. If you make a change, and let's say you don't message it as temporary, if an employee works under the revised terms for, and again there's no bright line here that you can point to, but for a period of months you as an employer at some point have a pretty decent condonation argument, which is to say you accepted the change to your employment and therefore it's now binding. It's strategy and messaging and the rhetoric that's used, I think, because everything in terms of trying to get buy in here and that's what I've seen done successfully over the last little while.
Amy: Yeah, I would agree and I would also add that if you're communicating that it's temporary or you have a specific end date in it, the condonation argument, it will not apply there because the employee will probably have been deemed to have accept it as the temporary change. Then once you go beyond that I think you'd get into more of the risk. Also, one of the things that helps in terms of strategy, as Max was pointing out is, what are the other terms of employment. So, if you're not modifying anything so there's not a corresponding demotion or something else going along with the salary reduction, that's generally more acceptable. Whereas when you throw other things in there, like a change in title or a demotion, you're really going to start tripping more into the constructive dismissal risk and employees may or may not accept that. Like Max said we've seen more employees be willing to accept these terms throughout the pandemic.
Max: Okay, so we're going to talk a little bit about some returning to work considerations, and I know we're sort of spanning a number of topics here and some of these I suspect could be half hour in and of themselves, we may not cover everything in exactly the level of detail you're looking for but we're hoping to really flag sort of the main issues for you. One very common call we're getting is how to deal with people who are either not wanting to return in the context of the pandemic. To be frank, I got this call a lot was, "I think my employees are currently enjoying CERB, or other government benefits, and we're getting back what we think are sort of overstated concerns about the safety of our workplace." That was a fairly common concern. The way we tended to address that, what you have to do if you go to WorkSafeBC, for example, they have return to work guidelines and in fact they're industry specific in terms of what they expect you to do for developing a COVID-19 safety plan and hazard assessments and those sorts of things. Where I figure you can't lose on this front is if you're matching up with what WorkSafeBC is recommending is the guidelines that you follow. Then conversely you're dealing with an employee who's being difficult with respect to alleging safety concerns. At some point you can say that that employee is no longer being reasonable and perhaps start to ratch up the pressure for that employee to return. Ideally you want to work that out between yourself and the employee. What you've got to be wary of in these circumstances are two things and maybe if we could jump to the next slide, Jen. There's a couple of things to watch. One is that, and I've only seen this twice in the last seven months, but the employee can go to WorkSafeBC, register a complaint with respect to their concerns, which puts you in a situation then dealing with an inspector to essentially adjudicate whether or not the employee has a reasonable basis for returning, and whether or not the employer's done what they can to mitigate COVID risks in the workplace. In both instances I found the inspectors quite reasonable and sided with the employer. So that was good news there, but you may not necessarily always get that, and of course a lot's going to depend on the extent and effort you've put into matching up your COVID-19 safety plan with what is prescribed or recommended by WorkSafe. So the take away there is do your best to work it out directly with the employee so you can avoid having to have WorkSafeBC involved in your business. But we've had a couple of good results so maybe it's not the end of the world. So that's one issue we've seen. The other is what I've got on the screen and, Jen, if you could jump to the next one.
Of course this hits home for all of us. At some level our schedules have been altered and you've got to be live to people's family situations here. Of course the Act, at 52.12(2) has provided a form of job protected leave, not paid of course, but job protected leave for people who are suddenly have difficult family care circumstances thrust upon them and you've got to, in addition to that amendment to the code, you've always got to think about your human rights obligations as well and that's where this expanded concept of family status kicks in. We've seen a few different things in this area, okay. The simplest being an unpaid leave where the person is taking some time off and may return when things get back to normal. Easy enough but not every scenario is that cut and dry. Where it gets a little more complicated is scenarios where employees will still want to work, but may not be able to work at the same level of productivity, because of their childcare arrangements. Are you in that circumstance required to pay them their full salary for lesser work? Not necessarily. I would suggest that that opens up a scenario where they're keeping their job but you're only paid for services you provide and I think it's not unreasonable to get a situation where you might negotiate some reduced measure of compensation for the period of time that the alternative care arrangements are required by that employee. That's been a very common complaint. Now my workers only doing 93 but I'm still paying salary at full rate. How long do we have to do that for? I've yet to come across a case where an employee has refused that change in compensation for a temporary period and has sued. I think it's got be coming down the pipe soon. I haven't seen a case like it yet but that's something to keep in mind. But in that scenario, if you are under financial strain and you have found the productivities changed, it's not a negotiation that you necessarily need to shy away from. If we could jump to the next slide, Jen. Next one after that.
Thinking about this more broadly and what we assume the lessons here, in terms of what you got to do, with respect to WorkSafeBC. Their websites getting better. I found in the early days of the pandemic they were behind on things. Understandably so but the guidelines are now quite specific and industry specific. Of course there is a mandate to have a COVID-19 safety plan in place. They put the ominous sort of marker in there that says, "WorkSafeBC will be reviewing plans of individual employers to ensure they're compliant." I've had that come up twice in the last 6 months where there's been a surprise inspection. Fortunately both cases the employer had pretty decent COVID protocols in place. But I've not heard of it beyond that. That's not to say it's happening, but to the extent that our client base is representative of the BC economy, doesn't look like it's happening too much. In the same publication they say, "If you're not up to speed on the COVID-19 protocols and planning you may be subject to fines." I've looked over the last couple of days, this morning I went back as far February of this year, to see if I could find any penalties issued by WorkSafeBC with respect to a failure to implement an appropriate COVID plan. I could not find one. I looked through about 200 decisions. That's not to say that they're not out there somewhere but if you trust the comprehensiveness of the list I wasn't seeing much there. So, some good news there and that suggests to me that even if you do get an inspection, or this does become a point of discussion between you and WorkSafe, that they're being reasonable in terms of probably allowing the employers to get up to speed on that front. So, a bit of a good news there. We've got here, this is connected to the point about employees who may or may not want to come back to work, your best point of reference, again, are these WorkSafeBC guidelines in terms of showing your compliance. Trying to stay in lockstep with what they're recommending and what the Provincial health officers are recommending. The best you can there. That's got to be your guidelines. Where you get into trouble in these spaces is if you adopt policies that are more aggressive than what the current WorkSafeBC guidelines are proposing and that's where you get variances, but again, we're not seeing penalties yet so it may be more of a remedial style. If it comes up for you get the policies correct. Another thing we've been asked to do and may be worth doing is a revision of your policies with respect to workplace attendance, illness. We're getting a lot of requests, for example, the modified travel plans to define what will happen in the event that an employee's ill, becomes ill with COVID, what steps need to be taken? What are the employers responses to that going to be? We're finding that there's a lot policy revisions to get those clear communications out to employees so that you don't have ambiguity and you don't have confusion, which of course, when you do have that you lose the possibility a break in the employment relationships. We've seen a lot of employers really jump on being proactive about getting those new policies in place so people have the guidelines. If we jump to the next slide, Jen.
An emerging issue that we're seeing in connection to maintaining a safe workplace is the use of different methods of screening. I think we've all seen this in different places. Anywhere from getting on an airplane, if you're flying these days. I went to Telus the other day to get an iPhone 12 and I got my temperature taken. It's everywhere. I think the public's acceptance of temperature screening is probably in a pretty decent place where you're not going to get any challenges. What I have been getting calls about lately is to the extent that rapid COVID-19 nasal testing, essentially becomes available, what are people's thoughts on that? You just get into that classic counter-balance of doing what you need to do to maintain a safe workplace versus people's privacy. We'll talk about the privacy component in a second. I think in this context, in this climate, your duty to maintain a safe workplace is going to win out the majority of the time. A lot will in part, I think, depend on what is your workplace? What are the physical characteristics of the workplace? Is it possible to have people spread out and screens and reduced workforce on a daily basis? Rotating workforce. It could be people work from home. I deal with clients in the mining industry. You need our miners there. It's not possible to reduce the workforce ... to keep operations going. I could see in that context, to the extent that affordable rapid COVID-19 testing becomes available, I see minimal risk of privacy exposure on that front. I would say that one thing worth noting is that the current Health Canada recommendations, with respect to rapid testing, they've approved a couple of different US technologies in this space but, at this stage anyway last I read which wasn't that long ago, need to have trained medical personnel administer these tests. That's not necessarily going to be practical for a lot of different workforces. It may be for certain industrial sites or a mine, as I just mentioned, but not necessarily for everyone. Then the contact tracing, Amy I'll let you jump into this, but a lot's going to come down to getting buy in from your workforce. Getting consent here because there is certain potential here to infringe into people's lives in terms of what they're up to and where they're going. Maybe this is a good point to turn it over to you, Amy, to talk a little bit about the privacy considerations.
Amy: Yeah, sounds good and I will, if we can go to the next slide, I'll just jump in. Primarily I'm just going to talk about here temperature screening because that's the main one. But I just wanted to point out also with the rapid COVID testing, there was a statement released a while back from our own celebrity, Dr. Bonnie Henry, where she stated that COVID testing for asymptomatic employees at work was against Public Health guidance. But she didn't issue an order prohibiting it. So, Max's recommendations are spot on in that you really want to ensure it's appropriate in the workplace. For those that are higher risk, it's probably a reasonable thing to do, but in the lower risk ones given the guidance we have from Dr. Bonnie Henry, at that point I don't think you want to be doing that without the employee consent. Although things are changing. Max and I were talking a little bit about this. When the pandemic first broke out it seemed that privacy was going to really take an onslaught and a little bit of a back seat. We didn't really know in BC how bad it was going to get. What regions we were in and there was a lot unknown as to what was going on. A lot of things were being done that previously wouldn't have viewed as okay, from a privacy perspective. We sort of reached what I would call more of a normalization and a little bit back to where we were before, with the exception that obviously we're doing some temperature screening now, but we have a better idea now at this point of how far we can go. Basically, it's the same rule as we've always had which is that you really shouldn't be collecting anymore information than you reasonably need. Look at your workplace. Are you low risk or high risk? If you've got somebody who's in a retail setting and consistently dealing with the public then you're probably in more of a high risk situation. Where you're in a really low risk setting you may be able to get away with other methods, aside from temperature screening, such as questions. I know probably a lot of you have gone places and they go through the whole question procedure that you're probably sick of answering. So that's one way to get around it and the other things is there are other alternatives that you can look into such as enhanced PPE and things like that. So you really need to consider the whole picture. Employers generally do not require employee consent to collect personal information. If it's necessary for the purposes of establishing, managing or determining the relationship but there's always a notification requirement. But whether or not collecting the temperature screening is required for your workplace is going to involve an assessment of that particular workplace. But at minimum, if you're not going to obtain consent, you definitely need to notify. That's going to involve putting up signs. You may just notify employees verbally. We definitely also recommend updating your privacy policies. This is a great time to take a look at that right now. Then there's also the data you're recording that you're getting from that. We don't recommend obtaining and recording the data that you don't need. For example, if you have a bunch of negative tests of employees that do not have high temperatures, there's probably not a reason to record all that nor is that practical. But if you're going to be relying on it to, for example, deny an employee access to the workplace because they've had a high temperature or some other negative impact on the employee, you probably want to record that. We would recommend to record that and keep it for a reasonable period of time so the employee has access to it. If we can just flip to the next slide.
Max had already talked about this. I've also received a lot of questions on the COVID-19 contact tracing apps. One thing I would note is when they were first coming out we were seeing the problem with these contact tracing apps, originally, was that they were collecting a lot of data and they were using third party users to collect that data. The data wasn't just going to your employer or whatever. It was going to a third party that may be collecting more information than would reasonably required for the employment purposes. Since then we've seen improvements in technology, and they're collecting less data than they were before, and there's more limitations on it which is quite handy. However, at this point we're still saying the best practice, as Max had pointed out, is getting it voluntarily and with employee consent. I think the reasons are obvious. Potentially those apps have the ability to track the employee all over outside of their workplace. It could be pretty invasive. One of the other problems with them is it's premised on the fact that you have your cellphone on you. So, really an employee could simply just leave their phone at home. Their score, some of them are based on scores, but it wouldn't actually properly trace them if they did come into contact with anyone. So there's a lot of considerations to put into play before you're getting an employee to voluntarily consent to that and one of them being how much are you going to rely on this in terms of your ability to bring them back to work and things like that. If we can go to the next slide and actually slide 33.
I'll just pass this to Max Brunette but I will just say as we went through this probably some of you are thinking there's some things that you need to do. We've mentioned updating privacy policies and one of the things, and Max already talked about it, is potentially looking at your employment agreements and Max I'll just pass it over to you.
Max: Sure. Thanks, Amy. The issue when you're looking at amending employment contracts, particularly with the existing workforce, is how critically do you need that amendment? What is it that you are seeking to put in? Because you have to provide consideration to our existing employees to support a material change to their terms and conditions of employment. For example, where it always comes up is if you want to input a severance clause. Or if people want to put restrictive covenants or something like that. Non-comps. Non-solicits. In there we get into debate of what amount of consideration do you have to provide? Will that bind? Will the clause be found enforceable? In the context of the pandemic and some of things that we've seen that would be certainly nice to have in employment contracts would be your contractual right to layoff employees so you avoid any potential argument of dismissal in the event you have to go into a temp layoff scenario. Certainly, and I think this is just good practice anyway, bullet 2, would be allowing yourself, for giving yourself a discretion as employer to make some reasonable levels of unilateral modifications to employment terms and conditions, and that's a tricky clause to be put there. Certainly if you know up front you give yourself the right to amend compensation I think that's going to raise a lot of eyebrows. But what you may be able to do is get some upfront agreement that roles and responsibilities may change and you can try and bake in a little bit of added discretion to your contract. Then of course, if you don't have severance clause in place, there's a huge amount of value in doing that to avoid back-end negotiations in the event you have to terminate. What I've put on that list there, the three what I suggested, do you need to run to your current workforce right now to get these in there, no. These are more lessons learned from the pandemic and just a refresher on nice items to have in employment contracts. So things to think about going forward. If you utilize them, certainly have come to the forefront over the past year. I think that is that for our slides. Shannon, could you jump over. We've got a little bit more there. Again, all these items I've just discussed, if you do find yourself having to make material changes to your contract the best position is to get the employees agreement up front. You can always do amendments by mutual agreement and hopefully you've got, you certainly want to be in a position where you point to some level of consideration being provided if you're taking something away from that employee. Even if they agree you may find yourself in a fight down the road that they didn't fully appreciate what the change was about and, no additional compensation was provided but some rights were taken away, you'll still find yourself in a fight about whether or not the consideration was valid. You do want to try and package this with some sort of change. What I often find that seems to be work as a reasonably successful strategy where you do need to make changes to the existing workforce's contracts is to tie it to salary increases next year, bonus payments. Maybe there's some aspect of the payment that's discretionary where you could point to it and say, "Well, this particular aspect of it was specifically to support this proposed change to your contract. Where you can find yourself in a fight, and I've seen these fights, is if you tie contract changes to just the normal pay increases that an employee expects every year. It's 2.5%, as an example, and you seek to tie material contract changes to that you'll be in a fight saying, "Well, look. This is regular expected performance or pay increase that the employee gets every year and you're trying to tack on this change." But that's a pretty nuance fight. So I wouldn't suggest you shy away from that strategy but just something to be aware of. Next slide. That is it for us.
So, we've got a few questions in the chat room that we'll try to address. I think some of them we've covered. One is does an employer have to keep paying benefits if they've temporarily laid off employees? In BC, the answer is yes. The Employment Standards has a publication that says if an employee is laid off they're still considered to be employed. Any benefits and entitlements, including vacation and leaves of absence are protected.
Another question about leave under 52.12 of the Act. That falls into the category of if people are seeking leave based on family care situation, the guiding principal is there. You're probably going to want to give them that time, and you do it on an unpaid basis, but I think be flexible though because it's ripe for a fertile ground for either an Employment Standards compliant or Human Rights complaint.
Okay, Amy. Here's one for you on the privacy front. In regards to privacy what are some considerations around notifying employees that someone at the workplace has tested positive? Employees are demanding to know.
Amy: Well, I think you just fall back to the original basic privacy principles which is that you don't want to disclose more than is reasonably necessary. If you have someone who's attended, and this is really a privacy sort of WorkSafeBC problem, if you have somebody who's tested posted for COVID-19 and they haven't attended the workplace, there's not really a need to notify anybody in your workplace. But if there's been an exposure in your workplace there's an obligation to notify the employees. We don't recommend, and it would be problematic from a privacy perspective, to name the specific employee who's been exposed. But there would be an obligation to notify people that they have been exposed, and then in terms of notifying WorkSafeBC, just to further expand on that. We sometimes have questions about whether you have to notify WorkSafeBC. Only if you end up having a positive test result or positive COVID cases as result of COVID-19 exposure in the workplace. If you have an employee returning back from travel and there exposure wasn't related to the workplace then that's not something that would require WorkSafeBC. I also just wanted to touch on the leave question a little bit further because I think that the 52.12 is the COVID leave and it does expand beyond the childcare portion. I see the question kind of goes a bit further and one of them is about reconciling it with the Public Health orders. I just wanted to say those apply for, basically this COVID leave is broad, and it applies whenever somebody has to self-isolate or quarantine as well as care for a child due to COVID-19 reasons, or their employer's otherwise directed them not to work. So there's quite a few circumstances where you're going to see that leave come into play. In terms of the directives from Public Health Officers and BCDC, we do recommend that you check those guidelines on a regular basis to see if that leave applies. We have noticed that the guidelines have changed, or at least they were particularly in the beginning of the pandemic, but currently they're basically all sort of along the similar vein which is if you travelled outside of Canada you're required to self-isolate when you return. If you've had an exposure or if you have a positive test for COVID. They're all sort of along the same lines as that. If you have an employee who's mandated to self-isolate in accordance with Public Health guidelines then they are entitled to an unpaid leave. So, I hope that answers that question.
Max: Very interesting question just came in. This was one that came up with one of Amy and I's clients not that long ago and the question is in the labour projects, and I assume you don't mean unionized but I think it applies to union or non-union, in what circumstances, if any, may the employer discipline employees who violate PHO COVID orders while off-duty? The example given, participating in a crowded house party, particularly where the employer's operation is safety ... such as healthcare provider. That is a very interesting thing and one that, as I said, just came up recently for us. Very interesting. What we opted to do in that scenario, because we had a violation very much like this, the form of discipline we enacted was to put the employee on an unpaid leave for the isolation period until they could provide a fitness to return note. This was in circumstances where the employee would otherwise have been entitled to paid leave. Could have availed themselves of sick days or vacation days. We went with what we considered to be a disciplinary unpaid leave. I'm not saying that's a perfect solution but it was some level of discipline we felt was warranted in the circumstances but what it led us to, and I think ties back to some of our other slides, is you may consider some amendments to your leave policies or to your sick policies to say that, it's very tricky. You get into an issue of culpability but if you look at culpable absence, as you think about it in that sort of context versus non-culpable absence, you see that a lot in collective agreements, to start to push these sort of deliberate violations, assuming you can prove, assuming you can prove it into the culpable absence category which may attract some level of discipline. Now, do you have to have that policy in place to do that? Not necessarily. Culpable absence is a disciplinable employee transgression so you can still do it, I think, you've just got to be careful about how Draconian is your discipline. So jumping right to termination for cause, I haven't seen a case like that, but I'd say that might be considered a bit heavy-handed. But something in between. Treating it as a culpable absence, not a bad strategy. We didn't get any pushback on that strategy we implemented in that scenario. It seemed to work well. But something to consider for your policy revisions.
Amy: I'd also say I've ran into those in the labour context and one of the things that we recommended is to definitely dialogue with your union and seeing where they're on board with this because what we found is that they're not wanting to deal with this either, or to accept this, and they've been welcoming to, basically, communication to the effect that employees are expected to abide by these in their off-duty conduct and it does get into a little bit of a gray area. We've addressed it in other circumstances where it had become plain and obvious that employees were gathering when they were leaving work on lunch hours and things like that. We just had frank discussions with the union rep and things like that about how it was going to moving forward and the employees were expected to abide by this and it took a pretty hard stance on it. We actually didn't get any pushback and it did solve the issue. Sometimes there's a bit of a practical solution there as well.
Max: We've hit 1 o'clock and we also want to be sensitive to people's time. So, again, thank you. I hope that you found some useful tidbits throughout the course of this seminar. If you would like a copy of our slides please don't hesitate to email either of us. We'd be happy to provide that to you and certainly, if you've got follow up questions, happy to chat as well. Thank you very much for joining us and hope you all have a good day.