Coping with the Consequences of COVID-19: A Guide for Employers

Since the World Health Organization declared a pandemic over the spread of COVID-19 on March 11, 2020, several areas of life, including one’s workplace, have been found to be un-immune to the effects of this super-contagious virus. In Ontario, the sacred employment relationship has evolved to address the reality of COVID-19, spurring endless questions about employee rights and employer obligations.  On March 19, 2020, Bill 186 was fast-tracked through Queen’s Park to amend section 50.1 of the Employment Standards Act, 2000, in order to respond to the changes in circumstances.

To limit their liability, prudent employers must ensure that they are up-to-date on the daily provincial and federal changes taking effect and acting within the new laws while adapting to the business impacts of COVID-19.Some relevant questions employers may have as they contemplate next steps are answered below.

Are there protected leaves of absences that employees are permitted to take?

There are several unpaid leaves which an employee is entitled to under Ontario’s Employment Standards Act, 2000 if they or a member of their family becomes ill. The Act has been amended by Bill 186 to include an “Infectious Disease Emergencies” leave in response to COVID-19. 

New leave of absence for COVID-19

Due to the circumstances arising from COVID-19, the Ontario legislature fast-tracked a new leave of absence called an “Infectious Disease Emergencies” leave. Effective retroactively to January 25, 2020, provincially regulated employees are entitled to an unpaid leave of absence in circumstances including the following:

    • The employee is under individual medical investigation, supervision or treatment related to COVID-19.
    • The employee is in quarantine, isolation or self-isolation implemented as a result of information or directions related to COVID-19 issued to the public or an individual, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health.
    • The employee is under a direction given by their employer in response to a concern of the employer that the employee may expose other individuals in the workplace to COVID-19.
    • The employee is providing care or support to a family member or someone who is like a family member because of a matter related to COVID-19 that concerns that individual, including school or day care closures.
    • The employee is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.

Unlike other leaves of absence, there is no minimum service requirement prior to assuming the leave, so employees who just started a new job may be entitled to an unpaid leave due to COVID-19.

Other leaves available to employees, as well as their corresponding periods of absence are as follows:

  • Family Medical Leave – up to 28 weeks in a 52-week period
  • Family Caregiver Leave – up to 8 weeks
  • Critical Illness Leave – up to 37 weeks
  • Sick Leave – up to 3 days in each calendar year
  • Family Responsibility up to three days in each calendar year
  • Bereavement Leave   up to 2 days each calendar year

Can an employer ask an employee if they have been diagnosed with COVID-19?

Employers must be cautious about invading an employee’s privacy, but employers also have an obligation to maintain a safe workplace. In the context of the COVID-19 pandemic, it may be reasonable for an employer to ask its employees: if they are experiencing symptoms of COVID-19; if they have been in close contact with anyone who has contracted COVID-19; and if they have traveled in the last 14 days. Employers must ensure that they maintain confidentiality of an employee’s medical information, which may be difficult, given that a standard of proper disclosure has yet to be created. Should an employer be unsure as to the proper action taken in the event that they have concerns one of their employees may have COVID-19, it is advisable that they speak to an employment lawyer.

Can an employer ask for a medical note to substantiate an employee’s COVID-19 leave?

Employers are not permitted to ask employees for a medical note to prove their entitlement to a COVID-19 leave, but may ask for evidence supporting the leave that is reasonable in the circumstances. 

Does an employer have to pay its employees if they are in quarantine?

Unless there is a contractual entitlement or workplace policy in place, an employer is not obligated to continue an employee’s pay if the employee is no longer able to work because the employee is in quarantine. Short-term Disability and Employment Insurance may still be available for the employee.

Can an employee refuse to work because of COVID-19?

By way of the Occupational Health and Safety Act, an employee may refuse to work however, they must have a bona fide, or honest belief, that the environment of the workplace is a risk to their health and safety. If a work refusal is commenced, an employer must ensure that they take the correct subsequent steps of an investigation and it is advised that an employer speaks with legal counsel in order to abide with the correct process.

There are certain employees with inherently dangerous jobs, who are generally not permitted to refuse unsafe work. Those who provide emergency or first responder services are included in this group of exempted employees.

In any event, many employees will probably be permitted to take a leave of absence under the new “Infectious Disease Emergencies” leave.

Can an employer temporarily lay-off its employees?

An employer’s top-of-mind question today is whether it is legal for an employer to temporarily lay-off its employees. The simple answer to this is generally: no, unless otherwise agreed. Employers are not permitted to lay off an employee unless it is clearly allowed by the employment contract.

Nonetheless, employers may feel compelled to temporarily lay off employees due to an interruption in business or financial difficulties during this time. Employees may even want to agree to a temporary layoff. If a lay off is not contemplated within the employment agreement, the laid off employee may be entitled to damages as a result of “constructive dismissal” whereby the terms or conditions of the contract have been unilaterally altered.

Many employment contracts do not include a provision which protects the employer and allows them to temporarily lay off its employees, however, employers should contact an employment lawyer to review their contracts. If there is no such provision, employers should be aware of the exposure they will assume if they perform lay offs.

There are also limits around how long an employee lay off can last, after which the employment relationship is often considered to be terminated and the employee may be entitled to termination pay, severance pay, and further entitlements under common law.

Rather than laying off employees, an employer and certain employees may be eligible for Work-Sharing agreements, which they can apply for through Service Canada. Under a Work-Sharing agreement, two or more employees will temporarily work reduced hours while also being entitled to receive Employment Insurance benefits as the employer recovers from an interruption to its normal business. In response to COVID-19, the federal government has increased the maximum duration of Work-Sharing agreements from 38 weeks to 76 weeks. To determine whether your business and workforce may be eligible for Work-Sharing Agreements, contact an employment lawyer.

In order to ensure that policies, legislation and human rights codes are followed, seek legal advice.  Should you have questions about managing employment relationships in the workplace, contact our offices by phone at (416) 593-5844 or email at info@employment-lawyers.ca.

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