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Understanding Employment Law in the COVID-19 Climate

CORONAVIRUS / COVID-19: UNDERSTANDING WORKPLACE & EMPLOYMENT RIGHTS

The coronavirus outbreak is unprecedented. Levitt LLP has been flooded with information requests by employees, employers and media outlets asking about how the COVID-19 has affected employment issues, including occupational safety, human rights, job security, terminations and layoffs.

To assist in navigating these uncharted waters, we have assembled a team of expert employment lawyers to provide free consultations for COVID-19 related employment issues by calling us at 416-594-3900 or completing this form.

We have also set out below answers to the most pressing questions. It is current to March 18, 2020; however, coronavirus and the government responses to it are evolving rapidly, which may affect the information herein. If you are in doubt, please contact us.

Can an employee be laid off temporarily or permanently without compensation?

No, a layoff is a constructive dismissal (unless the employment contract expressly permits a layoff or the employee has been laid off in the past). Put differently, unless the employee agrees to the layoff, the employer must provide severance. Even though the Ontario Employment Standards Act, 2000 permits an employer to layoff an employee for up to 13 weeks without benefits and 35 weeks with benefits, the layoff is viewed as a constructive dismissal at common law.

If the employee agrees to a temporary layoff, the employer may layoff the employee and reinstate him or her after the leave period (but if not, the employer must provide reasonable notice). However, if the employee agrees to the layoff, the employee should make it expressly clear that he or she is doing so in extenuating circumstances due to COVID-19 and will not agree to a layoff in the future as a term of his or her employment. If the employee fails to do so, the employer may layoff the employee again in the future without it qualifying as a constructive dismissal.

What happens if the employee cannot work due to the Ontario government declaring a state of emergency until March 31, 2020?

If an employee is unable to perform his or her duties because of a declared state of emergency pursuant to the Ontario Emergency Management and Civil Protection Act (e.g.: bars and restaurants [except those that provide for take-out and delivery], public libraries, indoor recreational programs, licensed child care centers, occupations involving gatherings of 50+ people, etc.), the employee is entitled to unpaid leave under s. 50.1 of the Ontario Employment Standards Act, 2000. The employee must advise the employer it is opting for the Declared Emergency Leave or Infectious Disease Emergency Leave. When an employee so opts, employers are not allowed to discipline the employee. The leave ends on the day the emergency is terminated or disallowed. Employees should be reinstated at the end of the leave. Employers should continue benefits while the employee is on leave.

Even if the employee does not work in one of the industries ordered to shut down, the Emergency Leave provisions also protect employees that provide care or assistance to the following: an employee’s spouse; a parent, step-parent or foster parent of the employee or the employee’s spouse; a child, step-child or foster child of the employee or the employee’s spouse; a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse; the spouse of a child of the employee; the employee’s brother or sister; or a relative of the employee who is dependent on the employee for care or assistance.

If the employee works in one of the industries ordered to shut down, the court may view the contract as frustrated so the employee is not entitled to claim damages from the employer for at least the period of the government order.   The employee would be entitled EI benefits or EI sickness benefits.

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Can an employer close for a couple of weeks or reduce an employee’s pay or hours during the COVID-19 pandemic?

No pay or a reduction in pay or hours by 17% or more is viewed as a constructive dismissal (unless the employment contract expressly permits doing so). If the employee works in one of the industries ordered to shut down by the government, the court may view the contract as frustrated so the employee is not entitled to claim damages from the employer for at least the period of the government order.   The employee would be entitled EI benefits or EI sickness benefits.  With an employee’s consent, an employer may also wish to consider a work-sharing program that allows for a reduction of 10%-60% in pay/hours for which the employee is only partially reimbursed through Employment Insurance benefits. For more information, click here.

Can an employer force an employee to stay home or get tested for COVID-19?

Employers must maintain a safe work environment under the Occupational Health and Safety Act. If the employee returns from a country affected by coronavirus, the employee must also self-isolate, and the employer has every right to force the employee to absent himself or herself from the workplace for, at least, the requisite 14-day incubation period.

Similarly, if the employee exhibits symptoms of coronavirus, the employee must self-isolate, or the employer must send the employee home immediately. The employee should remove himself or herself from the workplace until he or she is either fully recovered or received a negative test. The employer can ask the employee to be tested or see his or her doctor in those circumstances.

If an employer does not act proactively to ensure that its employees are protected from other employees, customers or members of the public, it can be sued for negligence by those employees and anyone else who those employees, in turn, infect with the virus.

Can an employer fire an employee who is unwilling to work because of COVID-19 concerns?

If the employer has not taken reasonable precautions to ensure a safe work environment, the employee can make a health and safety complaint. Employers are not allowed to discipline or fire an employee who makes such a complaint.

Employers should act reasonably and permit working from home if the job allows. If the employee is vulnerable to COVID-19 because of his or her health, the employer should accommodate the employee to the point of undue hardship.

If working from home is not possible, the employee barring personal vulnerability and family-status obligations (more on this below), must work or take an unpaid emergency leave.

Do employees with children have to attend work or devote 100% of their time working from home despite their childcare needs?

The employer has a right generally to ask that the employee work, uninterrupted by child-rearing. However, it has to accommodate an employee’s childcare needs. Therefore, for all employees who have had their childcare suspended, they must look for alternate childcare. If they cannot find it, they should advise their employers, which can also attempt to assist in locating childcare arrangements. If that cannot be done, the employer by law is required to accommodate the employee working from home while looking after his or her child if the nature of the job permits working from home. If not, the employer must give the employee the time off to be with his or her children, but not with pay.

Do employees who are required to look after their elderly or infirmed family members have the same rights as those with children?

Yes. The Human Rights Code protects discrimination against family status, which includes individuals providing eldercare for ailing parents. People who provide care to spouses with disabilities are entitled to accommodation based on marital status.

What measures has the Federal Government put in place to assist during the COVID-19 epidemic?

On March 18, 2020, the government announced an $82 billion aid/stimulus package of which $27 billion is intended to support individuals and businesses:

  • Eliminating the one-week waiting period for EI sickness benefits for a maximum of 15 weeks of benefits up to $573/week for individuals who are sick, quarantined due to coronavirus or asked to self-isolate by their employers. The government has also removed the requirement for a doctor’s note for this assistance;
  • Small businesses have access to a 10% wage subsidy for 90 days, up to a max of $1,375 per employee and $25,000 per employer;
  • Introduction of an emergency care benefit of up to $900 bi-weekly for up to 15 weeks for individuals who have to stay home and do not have paid sick leave or are ineligible for employment insurance and are ill, or are caring for a child or someone who is sick;
  • Support workers facing unemployment have access to a $5 billion emergency support benefit through the CRA;
  • Extending the tax filing deadline for individuals from April 30 to June 1, 2020, and deferring payments until after August 31, 2020.

For a free consultation on coronavirus related issues, call us now at 416-594-3900 or complete this form.

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For a free consultation on COVID–19 related issues, call us now at 416-594-3900 or complete this form.

We have two locations in Toronto. We look forward to providing an in-person consultation or face-to-face video call where we can learn all the details. The fastest way to get started is to set up a consultation.