What a year 2020 has been! As we wrap up this year, we continue to receive dozens of questions each week on COVID-related issues. To help ease any HR concerns that may be lingering as we head into the holiday season, we have highlighted the most common HR questions we have received in this final newsletter of the year.

1. Do I need to issue T2200 forms to staff who worked from home this year and incurred non-reimbursed employment expenses?

The Canada Revenue Agency (CRA) recently announced a new temporary flat rate method to simply the process for employees to claim home office expenses on their personal income tax return for the 2020 tax year.

This simplified calculation method allows employees who worked more than 50% of the time from home for at least 4 consecutive weeks in 2020 to claim $2 for each day worked from home in 2020, to a maximum of $400 (200 working days). Employees who use this flat rate method do not need a T2200 form completed by their employer.

An alternate detailed calculation method is also available for employees should they wish to claim more than $400 in expenses when working from home. A simplified T2200S Declaration of Conditions of Employment for Working at Home Due to COVID-19 form has been created for employers to use for such purposes.

You can direct your employees to this CRA resource should they have any questions.

2. Do I need to pay employees if they need to quarantine or self-isolate at home due to a positive COVID-19 diagnosis or if they are a close contact of someone who has tested positive for COVID-19?

Different jurisdictions have different requirements for paid sick time. For non-union, provincially regulated employers in BC, an employer is not required to pay for the quarantine or self-isolation period if employees are home and cannot work. While many employers provide for a period of paid sick leave or are offering paid COVID-related leaves, these benefits are at the sole discretion of the employer.

If employees can work from home during their quarantine period, that would be one way for employees to continue working (and continue getting paid) while they are at home.

For employees who cannot work from home and need to take unpaid time off during a required period of quarantine or self-isolation, the federal government has introduced the Canada Recovery Sickness Benefit (CRSB) which provides income support to employees who are unable to work because they are sick, need to self-isolate or have an underlying health condition that puts them at greater risk of getting COVID-19.

Employees who are eligible for the CRSB can receive $500 ($450 after taxes withheld) for a 1-week period. Eligible employees may apply for up to a total of 2 weeks between September 27, 2020 and September 25, 2021.

3. I have employees who are refusing to come into the workplace to work due to health and safety concerns and personal reasons. What do I do?

In accordance with BC Occupational Health and Safety Regulations, employees have a fundamental right to refuse unsafe work if they believe it presents an undue hazard. An undue hazard is an “unwarranted, inappropriate, excessive, or disproportionate” hazard. Specifically related to COVID-19, an undue hazard would be one where an employee’s job role places them at increased risk of exposure and adequate controls are not in place to protect them from that exposure.

If an employee believes that their workplace is unsafe, there are 3 steps that the employee should take:

  • Report the unsafe condition or procedure for the employer to investigate and fix the situation, if possible.
  • Report the situation to the employer joint health and safety committee for them to investigate to ensure that the unsafe condition is fixed.
  • Notify WorkSafeBC for a prevention officer to investigate.

More information on these steps can be found here.

An employee cannot just simply refuse to show up to work because they generally feel unsafe. They are required to report the unsafe condition and participate in the investigation to work towards a resolution to the potentially unsafe work conditions.

That said, the recommendation from Dr. Bonnie Henry, BC’s Public Health Officer, is for employers to encourage employees to work from home, if feasible, unless there is a preference on the part of the employer or the employee for the employee to work at the workplace.

Employers are also required to review their COVID-19 Safety Plans to ensure that they adequately protect employees from the transmission of COVID-19 in the workplace, and to ensure that daily health checks for symptoms are conducted.

Our recommendation is that employers make arrangements for employees to work from home, if possible, or explore alternate work arrangements so that as few people are in the workplace as possible at any given time.

If the employee must come to the workplace in order to carry out their work, you must ensure that the workplace is safe and that you are following the requirements of the COVID-19 Safety Plan and are consistent with WorkSafeBC requirements. If the employee deems the work environment unsafe for them to work in, they should advise you of their concerns and you should address their concerns expeditiously.

If the employee is refusing to come to work due to other personal reasons (e.g. they are caring for a family member, they are immuno-compromised, etc.), our recommendation is to get more details from the employee on their situation and to determine if there is any flexibility possible with the requirement to work in the workplace. You can look at adjusting hours, adjusting tasks, look at a combination of working from home and working from the workplace, or have the employee take an unpaid leave of absence.

While you may be able to make a case to require an employee to come to work at the risk of more serious consequences such as discipline or termination, this is certainly not the preferred outcome. Given the anxiety and stress that has resulted from COVID-19, compassion, empathy and flexibility are important. As an employer, you may have the right to take a hard line; however, it may not be the right thing to do.

4. One of my employees is refusing to wear a mask at work? What can I do?

Find out why they are refusing to wear a mask at work. If wearing a mask is a requirement of the company’s COVID-19 Safety Plan, it is important to document and communicate the policy to all employees. Requiring masks for health and safety reasons, or to ensure compliance with public health directives, would be similar to the requirement to wear steel-toed boots, a hard hat, or other personal protective equipment, on a job site. Supplying masks to the employee would also eliminate a potential objection.

If the employee cannot wear a mask due to a disability or other medical reason, then this would be treated like any other request for accommodation. Seek medical confirmation from the employee’s physician to support the request and determine options to reasonably accommodate the employee (e.g. alternate face coverings, change location of desk, install plexiglass barrier, etc.)

If the reason is simply a refusal to wear a mask due to a personal objection, you can require the employee to wear a mask as part of your Safety Plan. Not wearing a mask would be a direct violation of a company health and safety policy, could put the health and safety of other employees at risk, and could be considered insubordination if they have been directly asked to wear a mask and refuse to do so.

5. Some employees have chosen not to take vacation this year and have asked to be paid out their accrued but unused vacation pay. What should I do?

The BC Employment Standards Act (“ESA”) looks at vacation in two separate parts: vacation time off and vacation pay. Employers have separate obligations under both parts of the ESA.

Employers are required to ensure employees take their statutory vacation time off each year. Employees should encourage (or require) employees to take their vacation time off even if they have nowhere to go. Now, more than ever, it is important for employees to take the time to unplug, rest and rejuvenate. Also, you want to ensure vacation time is used now rather than in the new year when you may need “all hands on deck” as many businesses head into a COVID recovery phase.

Employers and employees cannot waive the right to the vacation time off each year. While there is nothing stopping an employer from paying out accrued vacation pay at year end, they would still have the obligation to make employees take their time off without pay which may not be preferred.

6. Can a remote employee work outside of BC if they are working from home?

Employers can set parameters for where employees work when they are working from home. Some employers require employees to stay in the local vicinity or within the province. Others allow their employees to work from anywhere.

If your company policy allows employees to work outside of BC, be aware that there may be additional tax, regulatory or workers compensation implications. Please refer to the following articles from some trusted sources:

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Year-End Reporting Requirements

While we have not received many questions related to year-end reporting, employers should be aware that the CRA has released the following new reporting requirements:

Please note that the CEWS has been extended to June 2021. Changes have been made to the rates and the top-up calculation.

We wish you a restful and healthy holiday season and a new year full of joy and health.

 

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