This document provides general information to workers employed in British Columbia. It presents information related to how severe weather related to climate change can impact workers’ rights and employers’ obligations as set out by, the:

• BC Employment Standards Act (“the ESA”);

• BC Workers Compensation Act (“the WCA”);

• BC Occupational Health and Safety Regulation (“the OHSR”);

• BC Human Rights Code (“the HRC”); and

• the common law (decisions made by judges in court).

This research was originally completed for the Worker Solidarity Network by members of the Pro Bono Students Canada University of Victoria Chapter. The authors of this work are Samantha Chenatte and Annie Chochla. Samantha is a second year student at UVic Law with experience in labour & employment law. Annie is a first year law student at UVic Law, and still currently works as a tree planting foreman.

Disclaimer: PBSC at the Faculty of Law, University of Victoria, cannot provide legal advice. This document contains a general discussion of certain legal and related issues only. It is not legal advice. Please consult a lawyer if you require legal advice. The information in this document does not apply to unionized workers and independent contractors.

Introduction

“Precarious employment” doesn’t have a specific definition, but it’s generally understood as employment situations where workers experience few protections and significant unpredictability in hours of work available and pay they can receive. In short, this is the definition of tree planting. The opportunities and experiences tree planting provides can be extraordinary, but they come at the cost of working in an industry that can be deeply affected by situations totally outside of your average planter or middle-management’s control. As many of us have experienced over the past few years, severe weather events related to climate change (such as heat waves, flooding and forest fires) can have a huge impact on our opportunities for work and income during each planting season.

It’s important to know how severe weather events associated with climate change can intersect with workers’ rights and employers’ obligations. We explored this issue, and broke it down into three topics you should know about:

Termination Rights

Termination Rights: What are your rights if you are dismissed due to a climate-related event? → In tree planting, unfortunately, termination rights don’t amount to much. The common law and the ESA stipulate standard requirements regarding notice and compensation when an employer dismisses an employee. Unfortunately, due to the industry’s general employment model of hiring and laying off workers each season, these protections generally do not apply to tree planters. This is because most of the termination standards are oriented around the length of employment. That being said, we’ve included the findings from our research on the subject below. While tree planters might not benefit from these standards, the information itself can be valuable in other forms of employment. All employees are entitled to notice upon termination. Notice can be written or monetary (i.e. severance pay). The ESA provides minimum mandatory entitlements for notice in subsection 63(3). Under the common law, you are presumed to have additional entitlements to notice; a very rough rule of thumb is one month of notice per year of service. There are exceptions to the ESA’s minimum mandatory notice, but extreme weather events are unlikely to meet this threshold. Subsection 65(1)(d) provides an exception to the ESA’s mandatory notice requirements when your job becomes “impossible to perform due to an unforeseen event or circumstance”. “Impossible to perform” is a very high standard to meet: the weather event would need to completely destroy your entire workplace (including secondary locations), or something similar so you could not perform your job (or a variation of it) at any of your employer’s business operations. “Unforeseeable event or circumstance” is an easier threshold to meet. For example, COVID 19 was recognized as unforeseeable. To qualify for this exception, however, both requirements must be met. An exception to the common law doctrine of reasonable notice is “frustration of contract”, but extreme weather events are unlikely to meet this threshold. This is similar to the ESA’s exception but applies only to the additional notice you are presumed to have under the common law (1 month notice per year of service). Your employment contract is deemed “frustrated” when it is changed so fundamentally that you cannot perform your job anymore (for example, an extreme weather event destroys your entire workplace). Temporary closures do not meet this standard. A final exception to either form of notice is termination for “just cause”. It is very unlikely that an employer would have “just cause” for termination based solely on an employee not making it to work due to an extreme weather event. Dismissal with “just cause” is not defined in the ESA, but from the common law, we know that it requires a pattern of prolonged serious misconduct with repeated interventions by the employer, OR a single egregious event such as theft. Missing work due to a weather-related event will likely not fit into either category. Lacking any “just cause”, an employer will owe you notice if they terminate you. Contracts that are “frustrated” are not entitled to reasonable notice. This is an exception to the entitlements set out by the ESA, and an employer may try to rely on this in the event of termination due to weather events. However, this requires that the contract be impossible to perform due to an unforeseeable event or circumstance. “Impossible to perform” is a very high standard to meet: the weather event would need to completely destroy the employer’s entire business operation or make it otherwise impossible to meet. “Unforeseeable event or circumstance” is an easier threshold to meet. For example, COVID 19 was recognized as unforeseeable. To qualify as a frustrated contract, however, both of the above circumstances are required. Climate-related events are not likely to constitute a “frustrated” contract unless they completely destroy an employer’s business operations. Climate events that temporarily close workplaces (in whole or in part) will not likely meet the threshold for frustration and reasonable notice compensation may be owed if you are terminated on these grounds. Climate events that permanently damage/close workplaces will likely frustrate the associated jobs and those employees will not be entitled to reasonable notice compensation.

Health & Safety Rights

Health & Safety Rights: What are your employer’s obligations to your health and safety during severe weather events? → Severe weather events can create new hazards which your employer needs to recognize and respond to. Severe weather events can create hazards. Wildfire smoke can impact workplace air quality, an extreme heat dome can cause risk of heat stress, a cold snap or lengthy period of rain can cause risk of cold stress, and extreme weather events can cause environmental disasters such as flooding or landslides. You have a right to refuse unsafe work. The WCA protects your right to raise concerns and have the issue remedied. If you notice a hazard at work (whether it is weather-related or otherwise) and you don’t think your management team has accounted for it, you should not be afraid to bring it up and have it addressed. Your employer may not punish you for doing this. If an employer takes a retaliatory action in response to a safety concern raised by a worker, that employer has committed an unlawful prohibited action. If you refuse unsafe work and then experience a layoff, demotion, bullying or intimidation, or any other penalty—and you have good reason to think it’s related – you should file a complaint to the Worker’s Compensation Board. You can also contact WorkSafeBC’s Fair Practices Office by calling 604.276.3053. What does refusing unsafe work actually look like?

• The worker must immediately report the circumstances of the unsafe condition to their supervisor or employer

• The supervisor or employer who receives the report must immediately investigate the matter, and

  • ensure that any unsafe condition is remedied without delay, or

  • if, in the supervisor's or employer's opinion, the report is not valid, must inform the person who made the report.

• If that procedure doesn’t resolve the issue and the worker still believes the conditions to be unsafe, the supervisor must investigate the matter with the following people present:

  • the person who made the report,

  • a worker representative from the Joint Health & Safety Committee;

  • or, if those two are unavailable as options, another worker selected by the worker who made the report

The employer or supervisor must not compel another worker to do the work that has been refused before the situation has been resolved. Employers need to maintain a safe workplace. This includes conducting regular inspections of the workplace and responding to worker safety concerns. In a tree planting context, this means being mindful of the weather conditions that could cause risk to the planters, as well as being mindful of the qualities of the block workers are on each day. High winds can cause danger trees to fall, previous weather events can put certain roads and cut banks at risk of sliding, wildfire smoke can cause breathing issues, and temperatures can pose acute risks. The OHSR sets specific thresholds for when the employer needs to respond regarding air quality and temperature. The employer needs to respond if complaints are raised by workers regarding air quality. They also need to respond if the outdoor temperatures become such that a worker’s core body temperature can exceed 38° OR that a worker could experience heat stress; or if the temperatures could cause a worker’s core body temperature to fall below 36°C OR could cause cold stress. Employers need to respond to hazards as set out by the OHSR. There is a hierarchy of approaches. The employer must start with the most effective one and move down the list only if the control suggested is not practical or feasible in their particular workplace. BEST: Elimination or substitution. This asks us to consider if the job be done in an alternative environment. In a planting context, management should consider if there is an alternative block that presents fewer risks at that time.

• If a heat dome is happening, higher elevation blocks can help. If winds are high, blocks with large numbers of danger trees could be avoided.

BETTER: Engineering controls. This would include a physical modification to the workplace.

• Cutting of danger trees and getting the client to reinforce areas that could be prone to landslides are examples of engineering controls that could help mediate wind hazards or landslide hazards.

• Because planting is a fully outdoor workplace, engineering controls don’t really give us great options for issues with temperature and air quality.

GOOD: Administrative controls. This involves changing practices and policies at work to manage the risk to workers.

• In a planting context, for any hazard this would involve warning workers of the hazard noted and instructing them on how it can be avoided, as well as avoiding having planters working far from the rest of the crew.

• When working during a heat dome, provision of water and electrolytes, keeping an air-conditioned truck accessible to workers, and shifting to fire hours (if feasible) are examples of administrative controls that could be implemented.

• For cold weather, keeping a warm truck accessible to workers could be an appropriate option.

OKAY: Personal Protective Equipment (PPE). This refers to anything workers can wear to help protect them. It’s not the best option, and it can be relied on only in conjunction with another control. It’s also important to ensure that any mandatory PPE is appropriate for the actual conditions.

• For a heat dome, a wet buff can be worn on the forehead to lower your core body temperature. Breezier, light-coloured clothes and a wide-brimmed hat should be worn.

• For cold weather, PPE could include latex gloves worn underneath planting gloves, provision of heated pads to be worn under clothing, and ensuring that all workers have proper rain gear.

SIDE NOTE: Recent updates to the OHSR have caused an increased number of tree planting companies in BC to recommend or require hard hats to be worn by workers. This is standard practice in other provinces as well as in coastal planting, but adjusting to these new approaches to PPE has the potential to make mediating other risks a bit trickier. Section 8.11 of the OHSR requires employers to assess each job site to determine if workers must wear safety headgear to protect them from overhead hazards. Some companies may choose instead to implement blanket policies requiring hard hats. However, it’s important that any PPE being worn is not to the ultimate detriment of workers’ safety. If you feel that complying with company mandated-PPE may aggravate hazards which are more significant than the one against which the PPE is aiming to protect (such as working through a heat dome and having to choose between a sun-protective wide-brimmed hat, or a hardhat), this is something you should bring up to your supervisor or Health & Safety Representative.

Employers need to keep an emergency preparedness plan. This plan needs to account for any potential environmental hazards that are possible based on their geographic location and have an outline for how an emergency evacuation would go. In this plan, employers also need to consider any situation that can happen where a worker might need to be rescued or evacuated.

• All employers in BC must do a risk assessment to identify hazards in their workplaces. Hazards can include environmental disasters:

  • Rainfall can cause floods and road washouts

  • Forest fires may present the need for a full crew or camp evacuation

  • Windstorms can cause destruction both in camp and on the block

Accommodation Rights for people with disabilities

Accommodation Rights: What are your rights during a severe weather event if you have a disability? → If you have a disability, you may experience the impacts of weather-related hazards differently, and you have a right to be accommodated. The HRC at s.13(1)(b) sets out that a person must not be discriminated against in employment because of any physical or mental disability. Severe weather events can exacerbate certain disabilities or chronic illnesses. For example, wildfire smoke can impact someone with asthma more than someone without asthma; a heat wave could present a more significant danger to someone with high blood pressure; and the presence of a nearby forest fire can agitate a worker with PTSD or anxiety more so than a worker that does not. Workers are entitled to accommodation for these conditions. If you have a disability that you want your employer to know about and accommodate, your employer must: 1. Investigate what your needs are, with your participation. 2. Investigate how to accommodate that need to the point of undue hardship. This is based on “reasonable” accommodation: it doesn’t have to be perfect or based on your preferences. If you think you’ve been discriminated against because of a disability, the common law provides a test for that. This test asks, on a balance of probabilities (i.e. more likely than not, or with at least 51% certainty): 1. Does the employee have a disability? 2. Has the employee suffered adverse treatment? 3. Is there evidence to reasonably infer that the disability was a factor in the adverse treatment? Once you’ve proven the three criteria above, your employer will have to justify their actions (or inactions) to rebut your presumed discrimination.

Conclusion

Well, we hope that we’ve been able to provide you with some facts and information that will be helpful to you as you head into the next or continue your current planting season. Undertaking this research and applying it to the context of tree planting revealed a significant gap in protections for tree planters, as well as other seasonal workers: termination rights.

However, health and safety rights and accommodation rights provide protections that shouldn’t be forgotten about. As more and more mainstream attention is brought to seasonal workers in Canada, hopefully, more room for improved approaches to the termination of seasonal employees will be pushed for in the future.

In any case, know your rights, don’t be afraid to advocate for yourself and your coworkers, and do what you can to help your employer help keep you safe. Happy planting!

Resources & Further Reading

Guide to the BC Employment Standards Act Guide to the BC Workers Compensation Act Guide to the BC Occupational Health & Safety Regulation Guide to the BC Human Rights Code WorkSafe BC – “Raising an issue or complaint” WorkSafe BC – “Preventing Heat Stress at Work” WorkSafe BC – “Cold Stress” WorkSafe BC – “Is your workplace prepared for an emergency?”