Howard Levitt: The five kinds of lawsuits that have stemmed from COVID-19

The pandemic has provided grist for lawsuits that did not exist before.

“The first thing we do, let’s kill all the lawyers,” Henry VI, Part 2, Act IV, Scene 2, William Shakespeare

I encounter palpable upset in the letters I receive in response to my recent columns and in the talk shows I have been participating in across the land when I advise Canadians of their legal rights with respect to COVID-19. Why should employees be able to sue impecunious employers who themselves are victims of the pandemic? How can employers change an employee’s job function from what they have done for years upon their recall from a layoff?

The pandemic has indeed provided grist for lawsuits that did not exist before and, as the courts had been closed until recently, the backups and bottlenecks will be even greater.

What kinds of lawsuits are flowing from COVID-19?

1. Lawsuits for constructive dismissal as a result of non-union employees being laid off, having their hours reduced, shifts dramatically changed or pay reduced by more than 16 per cent. Such a lawsuit requires the employee to refuse to accept the changes, resign and sue as if they had been fired. And the damages are equivalent to what an employee would receive if they had been wrongfully dismissed. To clear up what remains a popular misconception, that’s not the few weeks pay under Employment Standards Act legislation but generally 2-26 months.

2. Lawsuits by employees who continue to work with reduced pay or hours but choose to sue for the difference between what the employer is paying and what they formerly earned. This lawsuit is not for the indefinite period of the reduction but only for the difference over the same 2-26 month period that a court would have awarded if the employee had sued for constructive dismissal. By definition they do not have to resign to do this and they can proceed in this way based on an income reduction of any amount, whether less than or greater than 16 per cent.

3. Lawsuits against employers for negligence in maintaining a safe workplace, potentially for millions of dollars if employees, customers or members of the public, as a result of employer negligence, become ill with COVID-19, or commenced by their estates if someone dies. Of course, similar lawsuits will exist outside of the employment realm such as residents suing nursing homes for not taking proper precautions, resulting in illness and death. Or families suing other families who infect their family members as a result of not taking proper safety precautions. Or parents suing schools if their child contracts COVID-19 as result of that school not taking proper safety precautions.

4. Lawsuits against employers by employees for surveilling their personal devices in an arguable violation of their privacy rights when those employees are performing remote work. An employer can advise an employee that all work devices will be monitored during the workday and, if they so advise them, the employee forfeits any expectation of privacy rights.

5. Lawsuits against employees who come to work knowingly infected with COVID-19, keep it a secret and then spread the illness to others in the workplace. Coughing on other employees deliberately in this climate would be cause for discharge. Of course, this potential lawsuit will also arise outside of the workplace and in the employment context as well. I had a friend who recently told me that someone had spit on him in some enactment of rage. That is also a criminal assault.

And now on to questions I received recently:

Q: Is overtime and standby pay considered in calculating severance?

A: Everything that an employee would earn during the number of months that they are entitled to in wrongful dismissal damages is presumptively included, such as commissions, bonus, benefits, overtime and tips.

Q: My employer wants me to work out of town for at least one week (on a) project but with the current situation it’s not possible because my wife goes to work when I get home so I can look after my two young kids. It’s a five-week project. Can I refuse?

A: An employee is entitled to refuse to work on a schedule or location that prevents them from exercising their family status i.e. childcare or elder care obligations. The employee must be unable to arrange another caregiver during the time in question, and must work with the employer to find an alternative before they can refuse.

Q: I work three days a week, but my employers cut my hours by four hours a week.

A: A reduction in wages i.e. hours of more than 16 per cent, is a constructive dismissal.

Q: My brother works for a retailer that during COVID-19 was paying him 75 per cent of his salary. The company has not brought him back since it reopened despite his seniority, and have told him they aren’t bringing him back right now. He has not been paid either for two months. What are his options? Should they let him go and give him severance? He’s been with the company for 10 years.

A: There are a lot of issues in these questions. If he has just been told he will not be recalled, then he has now been terminated. He could have sued at the time of the original reduction in wages but obviously did not. He has that opportunity again now that he has been dismissed. Similarly, when they stopped paying him, he could have sued.

In terms of recall, seniority is irrelevant for non-union employees. But the fact that others were recalled and not him, regardless of seniority, gives him the right to then claim constructive dismissal.

Got a question about employment law during COVID-19? Write to me at [email protected].

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.