COVID-19 & your Small Business

I don’t see the “ordered by the employer” as a way to avoid the layoff/termination issue discussed above. The law was passed to prevent reprisals by employers against employees during the crisis. It’s not entirely clear what circumstances you can order employees home, but a safe interpretation is probably if they meet the categories that would allow them to take the protected leave (infected, businesses ordered closed by government – like restaurants, etc).

Other categories of unpaid leave – such as child care in the event of school closures – would also apply.

Safe work environment. This is a big one. Employees have a right to refuse unsafe work, and can’t be punished for doing so. You have a duty by law to provide a safe working environment, which would include a duty to protect employees from undue risk of exposure to the virus. Should you be open at all? If you determine that you must be open, what steps should you take to protect employee safety? What’s required will vary depending on your business. Email me to start the conversation.

Human Rights & Privacy. Kid gloves are required here. Your workers’ health status is their protected health information, and you are required to keep it confidential. Special rules apply to health information, compared to other personal information. Care must be taken to avoid your safety-motivated questions about worker health being interpreted as discriminating against a worker because of a pre-existing health condition. Email me to discuss what’s required.

Courses of Action. It seems that the most logical first step is to have a conversation with your employees, and see if you can:

Most non-union employment contracts don’t have a right to layoffs, so you’ll need their agreement to the plan at some point in order to close up shop temporarily. Better to have the conversation now, and get everyone pulling in the same direction, rather than waiting until after the fact and risking a fight. The government programs include shortened eligibility periods for EI, which can give your employees some financial help if they agree to a layoff. You’ll need to provide a record of employment in order for them to do so.

Landlords & Other Contracts

Your biggest overhead expense is likely your most worrying. The outbreak may be a “force majeure” event covered by your lease, or it may not be (landlords commonly still require you to pay rent during the force majeure event). The landlord may be getting property tax breaks or deferrals that may or may not be passed on to you as relief from additional rent under the lease. It depends on the wording of your lease.

Similarly, other contracts with third parties may need to be suspended or terminated, and “force majeure” clauses may apply. What’s required depends on the wording of the contract.

Customers & the Public

As in normal situations, you have a duty to take reasonable care to prevent injury/loss to others. What’s reasonable during the outbreak will depend on the nature of your business, but in any event, the government recommended policies are probably a good starting point:

Insurance

It’s possible that your business insurance may have coverage for COVID-19 related business interruptions. This would typically be under “business interruption insurance”. This is a form of insurance that landlords often require when they don’t allow you to escape paying rent in a “force majeure” situation, so pretty common.

Review your policy, and see what the coverage and requirements may be. I haven’t heard yet how insurance companies are responding to the increased claims (whether by increased coverage denials or otherwise), but if you have a coverage dispute, let me know and I can recommend some insurance litigators to help you fight for what you’ve paid for.

Again, the above is provided as information, and not legal advice. You can reach me by email to discuss specifics for your business.