Know your employment law rights during the COVID-19 Pandemic

(Last updated: March 27, 2020. This is not legal advice and is for informational purposes only.)

We understand that the COVID-19 pandemic has created a lot of uncertainty and anxiety about job security and income. We put together this brief Q&A to answer top of mind questions during this very difficult period. Hopefully this information helps. We will update this article as the situation evolves. Please feel free to share with anyone whom you think may find this information helpful. Stay safe.

Frequently Asked Questions

1. Is my employer required to pay me while I am in self-isolation or on a temporary layoff?

Your employer is not required to pay you if you are not working.

However, if you are working from home, your employer should be maintaining your pay and benefits.

2. Can my employer reduce my pay while I am working from home?

Many employees may be asked to work from home, but at reduced pay. If you are working fewer than your usual hours, the employer is entitled to pro-rate your salary accordingly. If, on the other hand, you are completing your usual workload and hours from home, the employer should generally be maintaining your full pay and benefits.

A unilateral and material reduction in pay may trigger a constructive dismissal, entitling the employee to claim a severance package.

3. Is an employer legally allowed to temporarily layoff employees?

Yes. Under the Ontario Employment Standards Act, 2000 (the “ESA”), provincially regulated employers may temporarily lay off employees due to a suspension of business operations.

The employer is not required to specify an exact recall date.

4. How long can a temporary layoff last?

Under the ESA, a temporary layoff may last for a period of up to 13 weeks in any period of 20 consecutive weeks.

The temporary layoff period may be extended for up to a maximum period of 35 weeks (in a 52-week period), only if the employer continues employee health benefits, continues contributing into the employee’s pension and retirement plans, provides supplemental EI benefits, or continues to provide substantial payments to its employees. The Ministry of Labour has interpreted ‘substantial payments’ to mean multiple and continuous payments to the employee throughout the temporary layoff period.

For unionized workers, the maximum length of the temporary layoff period is likely to be set out in the collective agreement.

5. Is my employer required to continue my health benefits while I am on temporary layoff?

Employers are not required under Ontario employment standards legislation (the ESA) to maintain benefits during the temporary layoff period if the temporary layoff period is to last for less than 13 weeks. That being said, taking away needed health benefits during a health care crisis can have a severe and detrimental impact to workers, particularly those who are highly dependent on medical plans for expensive medications and treatment. Failure to maintain benefits can be treated as a breach of contract and/or a constructive dismissal in certain circumstances, obligating the employer to pay a severance package.

6. If I am temporarily laid off, am I entitled to receive a severance package?

Employees are generally not entitled to a severance package if they are temporary laid off in accordance with Ontario employment standards legislation (the ESA).

In some cases, the courts have held that a temporary layoff triggers a constructive dismissal, automatically entitling an employee to a severance package. That said, the general principles governing a constructive dismissal may not apply in this unprecedented context. Of significance, the shutdown is not being initiated voluntarily by business, but is being mandated by public authorities.

7. If I am off work with no pay, can I receive EI benefits, for how much and for how long?

Qualifying for EI benefits

Generally, individuals must have accrued between 420 and 700 hours of insurable employment in order to qualify for EI benefits, depending on the local unemployment rate.

Length of EI benefits and Weekly Rate

The length of your employment insurance benefits will depend on whether you are placed on a leave of absence or whether you are temporarily laid off.

(a) EI benefits for Temporary Layoff

An employee who is temporarily laid off is generally eligible to receive EI benefits for the temporary layoff period, provided that they have accrued enough insurable hours. The number of required insurable hours generally varies by region. There is normally a 1-week wait period before EI benefits begin.

The amount of EI benefits you can receive will depend on your annual salary/wages, but the maximum amount is $573 per week.

(b) EI benefits for self-quarantine/illness/child-care reasons

Employees who are off work due to self-isolation, personal illness or for childcare, are entitled to receive up to 15 weeks of employment insurance (EI) benefits. The employer will be required to provide employees with an ROE coded D (illness or injury).

The usual 1 week waiting period has been waived so that employee can have access to benefits right away. A medical note will not be required to obtain these benefits.

The amount of EI benefits you can receive will depend on your annual salary/wages, but the maximum amount is $573 per week.

8. I have no pay and I do not qualify for EI benefits. Is there other help available?

On March 25, 2020, the federal government announced that it was rolling out the Canada Emergency Response Benefit to provide support for individuals who do not qualify for EI and are out of work or facing reduced income. The portal for application can be found here.

This measure merges the Emergency Support Benefit and Emergency Care Benefit announced the previous week.

The Canada Emergency Response Benefit provides $2,000 per month for the next 4 months to employees who have lost income due to COVID-19. It is available to individuals who are at least 15 years old and who in either 2019 or in the 12 months prior to application, earned a total of at least $5,000.

It is available from March 15, 2020 until October 3, 2020 and applicants should be able to receive the money within 10 days of application and as early as April 6, 2020.

9. When is a layoff considered permanent and is the employee entitled to a severance package?

If the layoff lasts beyond 13 weeks (or 35 weeks as applicable), and the employer has not recalled the employee back to work, then the employee is deemed to be permanently laid off and is automatically entitled to a severance package. The employee’s severance entitlement will depend on a variety of factors, including his/her length of service and contract of employment.

Employees who have been permanently laid off should consult with an employment lawyer about their severance package entitlement. The severance entitlement may entail several months of compensation, depending on the circumstances

10. My workplace is considered an “Essential Service”, but can I still refuse to work if I am afraid of catching COVID-19?

Starting at 11:59 pm on Tuesday March 24, 2020, all non-essential businesses in Ontario were ordered to shut down. A list of essential businesses can be found here.

For those working for companies or institutions deemed “essential”, employees can be asked to continue working. Employers must take reasonable precautions for worker health and safety. Depending on the nature of work, this can entail a variety of measures, including:

  • Providing personal protective equipment (PPE), such as masks, sanitizer and gloves;
  • Regularly sanitizing the workplace;
  • Requiring employees or visitors to the premises to declare whether they have recently returned from international travel
  • Requiring employees or contractors to stay at home if suffering from flu-like symptoms;
  • Taking temperatures;
  • Require employees and visitors to maximize social distancing;
  • Implementing rotating shifts.
  • Work-from-home for those staff whose physical presence is not required.

Employees may still lawfully refuse work if there is a threat to worker health and safety (for example, reasonable protective measures are not being taken or are inadequate), if they are unable to work because of childcare, illness or because they are in self-quarantine.

Workers in certain high-risk jobs that are essential to public safety (i.e. paramedics, firefighters, front line healthcare workers) may have limited rights in refusing to work. If the work refusal endangers someone else’s safety or the risk is a normal part of the job, you may be unable to refuse.

11. Can I be fired or disciplined for refusing to or being unable to work during the pandemic?

For provincially-regulated jobs in Ontario, the government passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (“ESAA”) effective March 19, 2020. The ESAA extends job protection for employees who are on leave for among other reasons, supervision for or treatment for COVID-19, are in self-isolation or quarantine, are acting upon the direction of public health or the government, or have to stay at home to care for their children amidst school and daycare closures, or are affected by travel restrictions preventing them from returning to Ontario.

Protection under the ESAA is retroactive to January 25, 2020.

Similarly, under the Ontario Occupational Health and Safety Act, employers are prohibited from disciplining, firing or otherwise penalizing an employee for refusing to work due to risk of exposure in the workplace. The validity of a work refusal will depend on a variety of factors, including the specific workplace, the nature of the work, the level of interaction with the general public and with co-workers, and the protective measures being put in place by the employer.

12. Can I sue my employer if I catch COVID-19 at work?

It is important to find out if the employer has Workplace Safety and Insurance Board (WSIB) coverage.

If your workplace is covered by the WSIB scheme, then if you are seeking compensation, including loss of earnings compensation, you have to submit a claim through the WSIB. WSIB benefits include loss of earnings (LOE) benefits as well as benefits for health treatment or equipment. Decisions pertaining to benefit entitlement are made by the WSIB. Note that if you are covered under the workplace safety and insurance scheme, you cannot sue your employer for catching COVID-19 in the workplace.

If the workplace is not covered by WSIB, then the employee can potentially sue for damages against their employer if it acted negligently, that is, if the employer failed to take every precaution reasonable in the circumstances for worker health and safety.

Additionally, the employer may be sanctioned by the Ministry of Labour pursuant to the Ontario Occupational Health and Safety Act if the employer put worker safety at risk. If you are concerned about your health and safety, contact the Ministry of Labour at 1-877-202-0008.

13. What assistance is available to help companies meet payroll obligations?

During the current COVID-19 pandemic, to encourage companies to keep employees on payroll, the federal government has announced that small and medium-sized qualifying businesses will receive a temporary wage subsidy equivalent to up to 75% of employees’ salaries backdated to March 15, 2020. Details whether these subsidies are taxable, as well as their end date and cap amount will be provided soon. The federal government has also promised these businesses loans of up to $40,000, interest-free for 1 year, and in some cases up to $10,000 of these loans will be repayable. Finally, HST payments due after February have been deferred to June 30.

Please note that the above is not legal advice and is for informational purposes only.

By |2020-09-04T10:55:18-04:00March 24th, 2020|Article-All, Covid-19|0 Comments

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