Employment Law Show 980 CKNW – S5 E21

Episode Summary

Vaccine rights, constructive dismissals, duty to accommodate illnesses, and more on Season 5 Episode 21 of the Employment Law Show on Global News Radio 980 CKNW in Vancouver.

Listen below as Employment Lawyer Jon Pinkus, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in British Columbia on the Employment Law Show. Jon shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, and more.

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Episode Notes

I was placed on a layoff due to the fourth wave of COVID-19. I told my employer I don’t agree with this and was told I was not a team player. What should I do?

Employers do not have the right to lay off employees without their consent, despite the COVID-19 pandemic. Employees who do not agree to the layoff are within their rights to treat the layoff as a constructive dismissal and pursue their severance entitlements. Employees who wish to accept the layoff but only for a short period of time should ensure that the acceptance is in writing and state there will not be future layoffs.

I was on medical leave for two months and gave my employer a doctor’s note stating I would return after my surgery. My surgery was postponed due to COVID-19 but now I’ve been told my job is no longer there. What can I do?

Employers cannot terminate employees while on medical leave or due to a medical condition, it is illegal and considered a human rights violation. Employees who have been terminated as a result of illness should contact an employment lawyer as soon as possible in order to pursue their severance entitlements as well as potential damages. Employers are obligated to ensure employees have a job to return to after a leave.

Will your employer be able to let you go if you have not been vaccinated?

Employees who work within a sector in which the government has mandated vaccination can be let go if they have chosen not to be vaccinated. However, for most employees, employers do not have the right to terminate an employee without severance or penalize their employee in any way as a result of vaccination status.

Will your employer be able to ask if you have been vaccinated or not in order to return to work?

In B.C there is privacy legislation that ensures that employers will have to provide assurances to employees that their information will only be shared with those needed to provide a healthy and safe environment. Employees in most sectors do not have to provide their employers with their vaccination status but should cooperate with alternative health measures.

My son works in a restaurant but his employer refuses to pay him overtime. What can he do?

Employees who are not being compensated adequately can file a complaint with the Ministry of Labour and the Employment Standards Branch. Employers are obligated to pay employees for overtime pay provided they are not managers.

I suffered a workplace injury and had surgery. After a flare-up, I was put on medical leave and did receive some LTD.  My employer refuses to help and has instead put me on unpaid leave. Can they do this?

Employees should speak with their doctor about possible accommodations and restrictions required to return to work after leave. Employers do have a duty to try and accommodate an employee’s condition up until the point of undue hardship. Employers who are unable to establish undue hardship cannot terminate or penalize the employee and it is considered a breach of contract.

Can my employer demand I get tested regularly if I’m not vaccinated?

In most circumstances, employers will be able to request employees undergo regular testing if they are not vaccinated, even without legislation regarding vaccines. Regular testing can be seen as basic measures to ensure the health and safety of the workplace are maintained. Refusing to be tested can lead to possible termination however employees should be entitled to severance.

Will my employer be able to make my return to the office?

Employees who previously worked at the office and have been working remotely will have is to return to the office of health and safety regulations allow it. Employees who have a medical exemption should provide evidence to their employer and will be able to continue working from home.

My employer has told me my pay is being reduced by half in a year. Is this legal?

Employees who have been given advance notice of a reduction in pay have inherently been given notice of essential termination. A dramatic reduction in compensation is considered grounds for constructive dismissal. It is important for employees to be given adequate notice and severance and should contact an employment lawyer if they are unsure of their rights.

My duties have slowly been stripped from me in the past few months. Is this a constructive dismissal?

Employees who have lost prestige or effectively been demoted can consider the change in their position to be constructively dismissed. A constructive dismissal occurs when a change in the terms of employment has had a negative effect on the employee.

How should I approach my employer if I wish to take unpaid time off? I’ve run out of vacation time. What do I do if they deny my request?

Employees are entitled to vacation time but are subject to the number of years worked as well and employers are permitted to dictate when an employee is able to take their vacation.