On April 8, 2021, Clark Wilson LLP’s Charities and Not-For-Profits Group hosted a webinar titled Employment Law: What Charities &Not-For-Profits Need to Know with speakers from the firm’s Employment & Labour Group. There were several questions in the Q&A that could not be answered due to the time constraints. The Employment & Labour Group has provided answers to some of the outstanding questions from the webinar below. Please note that questions have been edited from their original form.
Does common law notice automatically apply? What about notice under the Employment Standards Act?
Yes, common law notice automatically applies unless there is a written employment agreement with the employee that set out a different amount of notice to be provided on a termination without cause. If you have to terminate an employee without cause who does not have such a written employment agreement, you should seek legal advice about the best way to proceed. For any termination without cause, you will need to ensure that the terminated employee receives the applicable amount of notice under the Employment Standards Act. The Employment Standards Act applies to all employment relationships unless subject to one of the exceptions set out in the regulations.
Are employees able to refuse to come to the office due to COVID-19 if they are able to work from home?
The answer to this question will depend on the circumstances and, in particular, whether the employee has an underlying medical condition or is otherwise at greater risk of contracting COVID-19 or suffering severe consequences. Certain employees may need to stay home for health or other reasons and you should first ask the employee why they cannot attend the office.
Many employers find that employees cannot do all of their work tasks from home and require them to come into the office periodically. If you require employees to attend the workplace, you must ensure that you have a COVID-19 safety plan in place that meets WorkSafe BC’s requirements and make sure that the plan is being followed. If employees have specific concerns about workplace safety, ask more about these concerns and look into what can be done to address them.
Ultimately, you should ask the employee why they cannot attend the office and then see if you are able to come up with a mutually agreeable arrangement. If you cannot, then you should seek legal advice about your options as these will depend on the particular situation.
When do I have to issue a Record of Employment (“ROE”) for an employee?
In general, ROEs need to be issued to employees who have had or are anticipated to have seven consecutive calendar days with no work and no insurable earnings from their employer (which is called an “interruption of earnings”). An interruption of earnings may occur as a result of a resignation, termination, or layoff.
An ROE should also be issued when an employee’s salary falls below 60% of their regular weekly earnings because of illness, injury, pregnancy, quarantine, the need to care for a newborn child, or to care for a family member who is critically ill (among other reasons).
There are some exceptions to providing ROEs and we suggest reviewing the Government of Canada’s guide on ROEs for a more detailed explanation.
If a contractor who is more properly classified as an employee does not make a complaint, how likely is my organization to get into hot water?
While certain issues with improperly categorized contractors may arise from the contractor themself making a complaint, an organization may get into hot water from various government entities or boards without the contractor taking any action.
It is difficult to say how likely such a circumstance may be, but the Canada Revenue Agency, Service Canada or WorkSafeBC may come across the contractor’s circumstances independently and may pursue an investigation. With the use of contractors becoming a more widespread, particularly in light of the extensive use made of contractors by companies such as ridesharing and food delivery companies, it may be that these various entities increase random checks, audits or investigations to determine where companies might have improperly characterized workers.
What I am I allowed to say in a reference check for an employee?
This is a complicated question. The Employment & Labour Group is currently planning a webinar in the coming months that will cover this topic. However, the short answer is that negative reference checks can lead to defamation claims and can aggravate circumstances for an employee who may have an ongoing claim against the company after their termination. An increasing number of employers are refusing to provide reference checks, but rather have instituted policies of only confirming employment. If such a policy is put in place, it must apply across the board and cannot be used to avoid giving negative reference checks for certain employees and positive ones for others.
Stay tuned for our upcoming webinar when we will explore this in more depth.
