What Effect Will Covid-19 Have On My Employment?
On March 11, 2020, the World Health Organization (WHO) announced that COVID-19 was a pandemic. The global spread of what experts have referred to as the “novel coronavirus” has had a significant impact on all of our families, communities and way of life.
In particular, as a result of the ordering of mandatory temporary closures of a variety of businesses and the encouragement of self-isolation by the Government of Ontario, employers and their corresponding employees have been left in a state of uncertainty. At Tailor Law, one of our specialist legal practices is employment law and we understand how confusing and frightening it can be when your very livelihood is threatened by forces outside of your control.
The following Frequently Asked Questions and Answers may be able to shed some light on your position:
Can I be forced to come to work if I feel it is unsafe? Am I entitled to work from home?
Where you have reason to believe a workplace is likely to endanger your health or put you at risk, you may have the right to refuse to work there. You must typically prove there is a clear and present danger which will depend on the kind of work you perform and any other relevant circumstances. There must a be real risk to your health and any right to stay at home would only last as long as the threat of potential infection was present. Without a reasonable belief, held in good faith of the risk of infection, your wages and job may be affected if you choose not to attend your workplace to work.
If you are required to be at home to care for a child, your employer is required under human rights law to make reasonable accommodations for you which could include allowing you to work from home or more flexible hours where this is operationally possible. If it is not, you may be entitled to job-protected unpaid leave and the Canada Emergency Response Benefit (“CERB” – see below) or Employment Insurance Benefits (“EI Benefits”).
If your employer has taken steps to reduce the risk of infection from outside sources (e.g. limiting physical contact with members of the public and providing adequate disinfection procedures/materials) and there’s no indication that any employee is currently infected, you may be obliged to continue working in your workplace.
In many cases, employers may simply opt to allow employees to work from home to reduce the risk of spreading any infection. You may wish to check with your employer whether there are any policies in place for working from home.
My employer has temporarily laid me off. Is this allowed?
Ontario law does permit temporary lay offs of varying lengths as long as you are recalled within a certain time period as specified by the Employment Standards Act, 2000. However, the ability to temporarily lay off employees must usually be expressly reserved in your employment contract or in a workplace policy that is incorporated into the employment contract. There may be some circumstances where such a right is implied but these situations are heavily dependent on your prior history of employment with your employer and the nature of the industry in which you work.
Where no right to temporary lay off exists in the employment contract or has been implied by case law, a unilaterally imposed temporary lay off could be considered a “constructive dismissal” and you may be able to claim for severance pay. Furthermore, a lay off that lasts longer than the designated statutory period could also be considered a “constructive dismissal”.
It should be noted that you may still be entitled to claim for the Canada Emergency Response Benefit (“CERB”) or EI Benefits if you have been temporarily laid off. Please contact us for a free consultation to learn more about your specific situation.
My employer is closing down their business because of COVID-19. Am I entitled to severance pay?
If your employer declares bankruptcy then you would not be entitled to severance pay. In the absence of this, you would ordinarily be entitled to it and the amount would be determined in accordance with your employment contract, age, length of employment, employment standards law and potentially other factors.
Can my employer reduce my pay/hours/benefits, etc. while the COVID-19 pandemic is ongoing? If my pay/hours are reduced, am I entitled to any employment benefits?
The employer can make changes to the terms of an employee’s employment with their agreement. Otherwise, an employer cannot force you to accept any significant and harmful changes. Any such changes made could constitute a Constructive Dismissal and you may be entitled to damages. In order to claim Constructive Dismissal, you may be required to leave the workplace and look for another job which may be very difficult given the widespread nature of this pandemic. In some circumstances it might be preferable for you to accept temporary pay reductions so that you can remain employed. If you do not agree to unilateral changes made by your employer, contact us today for a free consultation to determine whether you have a claim for Constructive Dismissal.
As of 17 April 2020, the Federal Government has expanded CERB entitlement to allow for low-income employees who are still working to earn up to $1,000 per month. At the date this page has been updated (22 April 2020), it is yet unclear how this will apply to employees who have had their pay reduced or their hours reduced to cause their pay to be $1,000 or less. However, it may be possible to claim for CERB in these circumstances. We would urge those who have questions regarding this to contact the Canada Revenue Agency directly.
It was also announced on the same day that the Federal Government would be discussing with Provincial Governments a wage boost for essential low-income workers for those who earn less than $2,500 per month. We will continue to update this page as further information is provided about this.
What benefits am I entitled to if I am quarantined/have contracted COVID-19?
If you can still work from home and are permitted to do so by your employer, you should receive your regular rate of pay and any benefits you are normally entitled to. Otherwise, you may be eligible to apply for the CERB if you stopped working after 15th March 2020 due to COVID-19. If you stopped working before 15th March 2020 and would have been eligible for EI Benefits at the time you stopped working but applied for EI after 15th March, then the government will process your claim under the existing EI rules. You may also be entitled to short-term disability insurance benefits under group benefits programs depending on your employer. You can find additional information about the eligibility criteria and applying for the CERB here.
If you choose to quarantine yourself when you do not have any symptoms of COVID-19, have not recently travelled, have not been sent home by your employer and have chosen to do so purely out of fear without any connection to prevailing public health recommendations, you may not be entitled to EI Benefits or the CERB. It should be noted that you will not be entitled to apply for EI benefits or the CERB if you voluntarily quit your job.
What kind of leave am I entitled to during the COVID-19 pandemic? Am I entitled to paid leave if I have contracted COVID-19?
On March 19, 2020, Ontario legislature passed Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (“the Act”) which, in very general terms, expands the scope for employees to job-protected unpaid leave to employees whilst a state of emergency is declared and/or an infectious disease (as designated by Provincial Government regulation) is inhibiting an employee from performing work for a variety of reasons. Notably, where you are unable to work because you need to provide care or assistance to a family member, you may be entitled to unpaid leave. Within the category of family members, the Act includes parents, children, siblings, grand-parents as well as in-laws and many other familial connections. You may be required to provide evidence that the requested leave is to provide care for a specified individual but employers are prohibited from requesting medical notes in relation to the new forms of unpaid leave under the Act. This form of protected leave is retroactive to 25 January 2020.
You may be entitled to paid sick leave depending on the terms of your employment contract or your employer’s policies. In light of this pandemic, your employer may choose to extend paid sick leave to you but this would be subject to their discretion.