By Matt Lalande in Articles on April 19, 2020
By Matt Lalande | Lalande Personal Injury Lawyers | A Victim’s Firm.
As many of you know we specialize in life-changing injury and disability. Employment law is always an issue in serious injury and disablity cases and as a result, we have been litigating wrongful dismissal employment law and other types of employment law cases since 2003. Our Employment Law Firm follows COVID developments daily and have compiled a questions and answers for employees (non-unionized) and employers about the effect of COVID-19.
The Federal government announcements on the status of the CPVOD-19 pandemic through the Government of Canada’s Coronavirus disease (COVID-19) website, the infection Prevention and Control Canada’s Information about Coronavirus website and the World Health Organization’s Rolling updates on coronavirus disease (COVID-19) website.
Yes. In each Canadian jurisdiction, occupational health and safety (OHS) legislation imposes a duty on employers to take 1) reasonable precautions for protecting the health and safety of workers in their workplace. Reasonable precautions are tailored to the nature of the employee’s work and the likelihood of the hazard in the particular workplace. The employer should also communicate any workplace hazards to its employees and train their employees on how to deal with workplace hazards.
In addition to these general obligations, additional industry-specific regulations (for example, in the health care sector) may obviously exist for preventing transmission of infectious disease or virus. Employers may face potential prosecution for not complying with these obligations if there is an outbreak of COVID-19 in the workplace and the employer’s efforts to control exposure were insufficient.
The exact COVID-19 transmission precautions required depend upon the likelihood of exposure in the workplace. To determine the risk, a workplace hazard assessment should be conducted, particular to the risk of COVID-19 transmission. Some workplaces (such as those in the health care and emergency services sector) are at higher risk than others.
In most workplaces, reasonable precautions to reduce risk of transmission include:
Some good hand-outs that may be given to employees see the Government of Canada’s are:
Also, employers should regularly check the Government of Canada and the Infection Prevention and Control Canada websites regularly for updated information on the transmission and prevention of the COVID-19.
In each jurisdiction, OHS laws allow workers to refuse to perform work if the worker reasonably believes that their work is dangerous, hazardous or unsafe. It is technically illegal for employers to penalize workers for legitimately refusing unsafe work. If the work refusal is based upon the potential risk of exposure to COVID-19, the work refusal investigation should take into account:
If a hazard is confirmed, the employer should adopt preventative measures to eliminate or reduce the workplace danger.
Depending upon the jurisdiction and nature of the refusal, workers in some occupations may not be able to utilize the work refusal process where the hazard is inherent in the nature of their work (for example, hospital workers). The process for a work refusal varies by jurisdiction. In most jurisdictions, the employer is required to pay the employee during the work refusal.
Depending upon the nature of the work, government recommendations for COVID-19 precautions and government shut down requirements, it may be reasonable for an employer to take steps to restrict an employee from physically attending at work. It is reasonable to restrict physical access to the workplace premises to reduce the risk of COVID-19 transmission where:
Just because a worker is restricted from attending the workplace does not mean they cannot perform work. Many employers allow their employees to work from home, either on a permanent or ad hoc basis.
Where an employee becomes infected with COVID-19 at work, the employer may have an obligation to report the illness to:
Each jurisdiction has its own rules for what types of illnesses or infections need to be reported, the timelines for reporting and the contents of the employer’s report. In some jurisdictions, the employer will have an obligation to reinstate the employee after they have recovered from their illness. Regardless of whether a reinstatement obligation exists, the employer will have accommodation obligations, similar to those under human rights legislation, in facilitating their return to work. As the pandemic develops, jurisdictions may use their emergency powers to require employers to report workplace transmissions to their public health agencies.
Any time there is a credible risk hazard in the workplace, the employer has an obligation to notify affected employees that they are at risk and take steps for hazard prevention. If an employer is advised that an employee or customer has tested positive for COVID-19, there may be a transmission risk for individuals that the person has had close contact with during the course of their work. The employer should contact the applicable public health authority to seek advice and direction about how to track the employee’s contact with other employees or customers and develop a plan for a response.
At this stage, COVID-19 and the effects on employment law can be quite serious. The employer should collect only the information necessary to fulfill its notification and reporting obligations, and should request that the affected employee consent to the use and disclosure of their personal information for the purposes of:
From a privacy perspective, in notifying any other employees or customers who may have been exposed to COVID-19, employers should:
Yes and no. We would say no, although many American firms are already taking on the task. Also, for those covered by WSIB in Ontario, workers’ compensation legislation provides for a no-fault compensation plan to workers who have work-related illnesses or injuries. If the worker qualifies for workers’ compensation leave, they will be able collect workers’ compensation benefits during their leave and will not be able to bring a legal action against their employer. As each jurisdiction has its own specific workers’ compensation legislation, check the prevailing legislation for any exceptions to this general principle.
Remember – there is a difference between refusing to attend the workplace and refusing to perform work
To address the employee’s concerns, the employer should consider whether:
If the employee refuses to attend the workplace without a reasonable basis, the employer is within its right to start the disciplinary process but this may not be advisable in light of community fears while the pandemic is ongoing. Be careful and speak to an employment lawyer.
In general, the employer has the right to manage the workplace, including requiring an employee to perform their work and attend at the workplace. In the normal course, it is entirely appropriate for the employer to discipline employees for culpable absences from work. During the COVID-19 pandemic, the normal disciplinary rules should be adjusted to reflect the current pandemic realities, emerging statutory employment rights and human rights implications.
For example, during the COVID-19 pandemic the employer should:
Working from home or “telecommuting” may be a reasonable option for both employer and employee where the workplace premises has been closed, or where the employee is under quarantine or self-isolation but is well enough to work. Telecommuting provides business continuity for the employer and continued income for the employee. Whether the employer should require their employees to work from home depends on the circumstances:
Unreasonable telecommuting requirements may amount to a constructive dismissal.
There is a risk of COVID-19 transmission in the workplace if an employee shows symptoms of COVID-19 or has contracted COVID-19. An employee may also present an infection risk when they do not show symptoms if they have been in close exposure to someone with COVID-19 (such as a household family member) or have recently travelled out of the country.
If an employee poses such a risk, the employer has the right and obligation under health and safety legislation to protect its workforce. A reasonable precaution to protect the safety of the workforce from COVID-19 infection is to bar that employee from the workplace pending confirmation that the employee is fit for work.
For a handout from the Government of Canada that that could be given to an employee required to self-isolate due to COVID-19 risks, see:
If the employee does not voluntarily refrain from attending work, offer the employee an opportunity to take a leave of absence or the opportunity to work remotely to avoid a loss of income. Unreasonably denying an employee the ability to continue working while they are able to do so may be a constructive dismissal in the circumstances.
If the employee refuses to take a leave or work from home, the employer may suspend the employee temporarily. The employee cannot be forced to take a statutory leave.
A suspension should be reasonable, or it will present a constructive dismissal risk. It should only be imposed for a good faith reason (preventing workplace infections) and for a reasonable period (until the employee is medically cleared to return). Normally administrative suspensions are paid.
An employer should not send an employee home or suspend them because of a belief that their race, place of origin, religion or other protected personal characteristics makes them more likely to pose an infection risk. Doing so may be prohibited discrimination under human rights legislation. If an employee demonstrates a clear infection risk under public health guidelines (regardless of their protected characteristics) these actions will not be considered discriminatory.
In the normal course of business, employers can request medical information from their employees for the purposes of attendance management, determining fitness to work, providing disability accommodation, administering benefits or administering the return-to-work process under workers’ compensation legislation. Privacy concerns can arise during a pandemic outbreak where an employer seeks personal or medical information from an employee:
If the employer does collect personal or medical information from its employees:
In all jurisdictions, the employer has the final right to determine the dates when an employee will take accrued vacation, subject to the terms of the employer’s vacation policies, the terms of any collective agreement and the various limitations set out in minimum standards legislation.
Depending upon the jurisdiction, there may be rules about:
In deciding whether to require employees to use their accrued vacation time and vacation pay, the employer should also consider what the implications of doing so are for employees for the remainder of the vacation year. If all employees are required to use their vacation now they will be unable to take time off at typical vacation times later in the year (e.g. late summer or December). The employer may consider offering unpaid leaves later in the year if employees want time off for travel or family gatherings that are not possible under COVID-19 restrictions.
An employer cannot force an employee to take a statutory leave of absence they did not request unless the jurisdiction’s minimum standards laws permit the employer to do so. Practically speaking, if an employee is absent from work and the employer attempts to discipline them for the absence, the employee might assert the statutory leave after the fact to avoid discipline. If the employee requests a leave of absence, does the employer have to provide it? If so, does the employer have to pay the employee during their leave?
The employee may be entitled to a leave of absence under minimum standards legislation, under workplace policies, or under their employment contract or collective bargaining agreement. The nature of the request will dictate the type of leave that is appropriate. During the COVID-19 pandemic, employees may request statutory leaves, such as:
The details of these statutory leaves vary by jurisdiction. Usually these leaves are unpaid and subject to employer verification. Several jurisdictions have expanded statutory leaves for employees who are absent from work because they are self-isolating for COVID-19, or because they must care for a family member who is affected by COVID-19.
Employers often provide more generous leave entitlements to employees (for example, longer leave periods, pay during leave). Such leaves are usually described in workplace policies, although they may also be set out in written employment agreements or collective agreements. In either case, employers must allow employees access to these leaves if they qualify. An employer cannot arbitrarily revoke a leave policy when it is needed by an employee.
Where the leave is unpaid, the employee may be entitled to income replacement under Employment Insurance (EI) benefits.
Some workplaces provide employees with Short-Term Disability (STD) and Long-Term Disability (LTD) benefits that allow the employee to be absent from work for illness reasons. These benefits replace income lost due to the employee’s inability to work due to an illness. If the employee’s illness will be lengthy, the employee may qualify for STD benefits and, ultimately, LTD benefits if they are unable to return to any remunerative work.
If the employee is:
There is currently no paid statutory leave in Canada that would require an employer to pay an employee who is self-isolating without any evidence of illness.
Several jurisdictions have expanded statutory leaves for employees who are absent from work because they are self-isolating for COVID-19, or because they must care for a family member who is affected by COVID-19. None of these new leaves are paid.
To help employees deal with the financial fallout, employers may consider alternatives that would provide the employee with income, such as allowing the employee to take their vacation with pay or utilize their banked overtime.
During the COVID-19 pandemic, a variety of Employment Insurance (EI) Benefits are available to employees who are unable to work:
All forms of EI provide up to 55% of an employee’s weekly earnings, to a maximum benefit of $573 per week. All require that the employee worked a threshold number of hours in insurable employment in the previous year.
During the COVID-19 pandemic, Service Canada:
CERB. The Government of Canada has also introduced the Canada Emergency Response Benefit (CERB), administered through the Canada Revenue Agency, which will provide a flat payment benefit of $500 per week for up to 16 weeks for eligible workers affected by COVID-19. This benefit will provide income support to:
Applications for the CERB are available from April 6, 2020 through a secure web portal. To be eligible, the worker must reside in Canada and have a valid Social Insurance Number (SIN). Temporary foreign workers and international student may be eligible if they meet other eligibility requirements. Applicants can apply for the CERB starting April 6, 2020 (see Government of Canada’s Questions and Answers on the Canada Emergency Response Benefit).
See also Employment and Social Development Canada’s Coronavirus disease (COVID-19) – Benefits and Services; Canada’s COVID-19 Economic Response Plan and Legal Update, Federal COVID-19 Initiatives: Changes to EI Sickness Benefits and Work-Sharing.
Employers should work with the employee to either create a flexible work schedule or to provide the employee with a temporary leave. This depends on the nature of the work and the employee’s obligations.
Employees may be entitled to statutory leaves under minimum standards legislation. Leaves applicable to parental responsibilities are typically only 3-5 days per year and are usually unpaid. However, several jurisdictions have expanded statutory leaves for employees who are absent from work because they must care for a family member who is affected by COVID-19.
Where child-care obligations are pressing and lengthy, the employee may be entitled to human rights accommodation under the protected ground of family status. Employers are prohibited from disciplining or terminating employees for requesting or availing themselves of statutory leaves or human rights accommodation.
During the COVID-19 pandemic, parents with children who require care or supervision during school closures and are unable to earn employment income, may be eligible for the federal Canada Emergency Response Benefit, irrespective of whether they qualify for Employment Insurance benefits.
Minimum standards legislation in most Canadian jurisdictions provide job-protected leaves for employees who are absent from work to care for an ill family member. An employer cannot discipline or terminate an employee for requesting or taking one of these leaves.
These leaves range from short-term leaves (typically 3-5 days) where the family member has a brief, minor illness, or long-term leaves (ranging between 16 and 37 weeks) where the family member has a serious illness or faces the possibility of dying in the near future.
Several jurisdictions have expanded statutory leaves for employees who are absent from work because they must care for a family member who is affected by COVID-19.
Where an employee is not entitled to these leaves or has exhausted them, the employee may still be protected under the family status ground of human rights legislation. If care for a family member (such as a child or elderly parent) is the employee’s obligation, the employer may have a duty to accommodate that obligation.
For a handout from the Government of Canada on how to care for an ill family member, see How to care for a person with COVID-19 at home: Advice for caregivers.
All Canadian provinces and territories have declared a state of emergency or a public health emergency, forcing the closure of certain businesses during the COVID-19 pandemic. Each jurisdiction has a unique list of mandatory closures. Most of these lists include closure of:
Some jurisdictions, including Ontario has gone a step further to require all non-essential services to close. The definition of essential varies in those jurisdictions.
When an employer unilaterally reduces an employee’s wages or hours of work, it risks a claim of constructive dismissal from the employee.
In determining if the reduction constitutes constructive dismissal, the courts will consider:
Employers who are in financial difficulty may be able to participate in the Work Sharing Program. This program allows employees who agree to work a temporarily reduced work week to receive EI benefits as income support.
Layoffs – when COVID-19 effects begin to impact supply chains, employers may be considering temporary layoffs to save costs, or even permanently terminating members of its workforce.
In non-unionized workplaces, – layoffs are considered a constructive dismissal unless there is an express or implied term in the employment contract permitting their use. It remains to be seen whether a layoff in the context of mandatory COVID-19 workplace closures would be treated as a constructive dismissal by courts. It is possible that courts may find that an implied layoff term exists in the employment contract for such circumstances. Where layoffs are permitted, they must be temporary. Minimum standards legislation dictates minimum requirements regarding notice, compensation during the layoff and the maximum duration of the layoff.
Terminations – in the non-unionized employment setting, the terminated employee will be entitled to statutory notice of termination (or pay in lieu), statutory severance pay (in some jurisdictions) and common law or contractual notice.
Reprisals – Ontario has implemented a Declared Emergencies and Infectious Disease Emergencies Leave which prohibits reprisals against employees who take COVID-19 related leaves. Laying off or terminating an employee who takes such a leave may constitute a reprisal exposing the employer to potential liability.
Discrimination – Human rights claims can arise if the employer terminates the employment of an employee who has (or the employer assumes the employee has) contracted COVID-19.
ROE – the employer must issue a record of employment whenever the employee has an interruption of earnings, such as a termination, layoff or an unpaid leave of absence. This allows the employee to make a claim for EI benefits.
Even if an employer has a contractual right to lay off an, that layoff must comply with applicable requirements set out in minimum standards legislation. The most important of those requirements are:
These rules are meant to ensure a measure of fairness for employees in the course of an employer’s workforce planning and reductions. They incentivize the employer to provide employees with advance notice that layoffs are coming, and they prevent employers from holding employees on layoff indefinitely without owing termination entitlements.
COVID-19 Specific Changes – the COVID-19 pandemic is an unusual layoff scenario. With very little warning, thousands of businesses of all sizes across Canada are facing mandatory closure orders or a drastic drop in demand for their services. Layoffs are the only option for many of these businesses. Strict application of notice requirements and maximum layoff durations may compound the economic disruption created by the pandemic by imposing a greater financial burden on employers, or by potentially deeming termination of entire workforces.
Government initiatives that may assist the employer during the COVID-19 pandemic include:
There are also different supports, which include:
Both the federal government and provincial/territorial governments have announced financial support initiatives for workers affected by the COVID-19 pandemic.
The federal initiatives will be accessible to eligible Canadians across Canada. These initiatives include:
Travel outside of Canada is not recommended. In an effort to stem the increasing rate of transmission, the federal government has announced drastic measures, including:
If an employee does not immediately return to Canada, there is a risk that the employee will not be able to return via commercial transportation. If an employee shows signs of COVID-19 when returning via air, they may be denied entry onto the airplane.
Funding may be available for Canadians or permanent residents returning to Canada (see Government of Canada’s COVID-19: Financial help for Canadians outside of Canada).
The government’s travel advisories are changing frequently during the COVID-19 pandemic. Check Government of Canada’s Travel and Tourism website for the latest on government travel restrictions and advisories.
During the pandemic, many employers are implementing policies requiring their employees to notify the employer if they have taken a trip out of country.
Any workplace policies that ask about personal travel plans should consider human rights implications. Human right claims can arise if the employer targets employees of a particular race, nationality, ethnic origin or ancestry, asking them detailed questions about their travel history and their family’s travel history. Employers can ask all employees the same questions, but they cannot stereotype or target employees based on their race, nationality, ethnic origin or ancestry.
Employers should follow the normal rules for protecting employee privacy when collecting this information.
While employers can restrict an employee’s business-related travel, limiting personal travel or requiring disclosure about personal travel is more problematic. As a general rule, employers cannot ban employees from travelling outside of the country for personal reasons.
As a practical matter, During the COVID-19 pandemic, the Government of Canada is restricting travel to other countries to essential travel only and the employee will not likely be able to travel outside the country for personal reasons due to these government restrictions . See Government of Canada’s Pandemic COVID-19 all countries: avoid non-essential travel outside of Canada.
Where an employee is returning from an out-of-country trip, employers should encourage the employee to follow the government’s COVID-19 directives.
During the COVID-19 pandemic, the Government of Canada is requiring any individual returning to Canada from abroad to limit contact with others for 14 days from the day they arrive in Canada. This means:
If symptoms present, the individual is required to contact their public health authority.
The employer should not allow the employee to return to the workplace during the self-isolation period or if they have COVID-19 symptoms and should assess whether the employee can work remotely during this time.
Where the employee cannot perform work away from the workplace during the self-isolation period:
After the self-isolation period has expired, and prior to returning to the workplace, have the employee confirm they have not contracted COVID-19 and have no symptoms of illness.
Coronavirus is a highly publicized pandemic that has affected the employee-employer relationship in severe ways. With quick changes happening, many employers and employees are unsure about their rights or what to do. If you are an employer or an employee who has experienced a termination issue as a result of COVID-19 please call us at 905-333-8888 to set up your consultation today. We would be more than happy to talk to you about your situation.