Mar 20, 2020  By John Hyde

Covid-19 Update: Changes to Employment Law

Things are more uncertain than ever with the spread of COVID-19. This anxiety is perhaps most palpable in the workplace. Both employers and employees need to act quickly to protect their interests. That means knowing your legal rights.

Can employers temporarily lay off employees due to COVID-19?

Yes. The COVID-19 epidemic has put a strain on many sectors of the Canadian economy, including restaurants, retail, manufacturing, transportation and many other industries where the spread of COVID-19 is a concern. Many employers have had no choice but to lay off employees until the situation improves.

The law regarding temporary layoffs is the same now as it always has been – an employer may temporarily lay off any employee, so long as that right is written into the contract of employment. In all other cases, an employer may be required to pay termination and/or severance pay to employees.

Are employers required to continue paying temporarily laid-off employees?

No. However, a temporary layoff automatically converts to a termination under the Employment Standards Act, after the passage of certain specific time periods.

As well, employees may respond to a temporary layoff by quitting and claiming that they have been “constructively dismissed” from their employment. Normally, a temporary layoff would be considered a constructive dismissal if it is not expressly or impliedly authorized by the employment agreement. However, most employees will have little incentive to make this claim unless the layoff is expected to last a significant amount of time; such employees have a duty to return to work if it is offered, and the damages for constructive dismissal in these circumstances will be confined to the employee’s actual loss of wages.

Do employers receive any benefit for retaining employees instead of laying them off?

Yes, some will. The public policy goal, currently, is to keep as many people employed as possible. Therefore, the federal government has proposed a tax subsidy for small businesses equal to 10 per cent of remuneration paid to employees during a 3-month period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer.

What about employers who have been ordered to close?

Certain employers – including Ontario’s schools, daycares, bars, and restaurants – have been ordered to close as part of the provincial government’s declared state of emergency. Protections for those employees can be found in the Employment Standards Act, 2000. Specifically, the employees of those businesses are entitled to unpaid, job protected “Declared Emergency Leave” until the state of emergency is lifted.

When can employees refuse to work?

For some employees, it is simply impossible to work during this emergency. Today, March 19, 2020, a sparsely attended Ontario Legislature unanimously passed the Employment Standards Amendment Act (Infectious Disease Emergencies). Thislegislation provides job-protected leave for employees who are in isolation or quarantine due to COVID-19, for those who need to be away from work to care for children because of school or day care closures and, for those who need to care for other sick relatives. These measures are retroactive to January 25, 2020, the date the first presumptive COVID-19 case was confirmed in Ontario. The legislation also makes it clear that employees cannot be required to provide sick notes.

Some commenters have speculated that employees may invoke the Occupational Health and Safety Act to refuse unsafe work, based on the idea that the COVID-19 epidemic presents a “reasonable risk of harm”. At this time, our view is that a work refusal on this basis is likely not justified, barring some exceptional circumstances (such as an infected co-worker). In all cases, the Ministry of Labour may determine whether the particular circumstance leads to a reasonable risk of harm.

Which employees are entitled to Employment Insurance benefits?

For the most part, the rules surrounding Employment Insurance have remained the same during the COVID-19 epidemic. However, the federal government has made a few emergency tweaks to EI benefits, which is likely aimed at keeping sick employees away from the workplace. First, the requirement to provide a medical certificate to access EI sickness benefits has been waived. Second, the 1-week “waiting period” for EI sickness benefits and the Federal Work Sharing program has been waived. That means employees who qualify (including individuals with COVID-19) will be able to access these benefits immediately – and stay at home, where they should be.

What about employees who are not entitled to Employment Insurance?

The federal government has recognized that certain employeeshave been unable to work as a result of the COVID-19 epidemic,but will not qualify for EI benefits. For those employees, the government has enacted a Temporary Income Support program, which provides up to $900 bi-weekly for up to 15 weeks, for certain employees, including employees under quarantine, their caregiving family members, and employees with children who require supervision due to school and daycare closures.

If you have any questions about how employment laws have adapted to the COVID-19 epidemic, do not hesitate to contact the employment law experts at Hyde HR Law.

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