As the effects of the novel coronavirus disease (COVID-19) are felt, employees are now faced with new questions as to their employment and human rights. In Canada, federal and provincial governments have applied and continue to apply new or amended legislation in order to attempt to combat these life-altering challenges we now face. Vigilant employees should know their rights and entitlements in order to protect themselves from a violation, particularly with amendments made on March 19, 2020 to the Ontario Employment Standards Act, 2000. As COVID-19 has proven to be potentially fatal, particularly to certain vulnerable groups, employers must follow new policies and legislation in order to attempt to ensure that their workplace is one that is safe for all of their employees. Additionally, as the virus upends our economy and employers feel an interruption in business, employees still have key rights at lay off and termination.

Some top-of-mind questions that employees have regarding these changes and their rights and obligations are discussed below.

Is there a Leave of Absence that I would be eligible to take during 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 “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.

Employees are not required to provide a medical note to take the leave, but employers may ask for evidence that is reasonable in the circumstances. Those circumstances are assessed on a case-by-case basis.

COVID-19 leave can last as long as the triggering event is occurring and COVID-19 remains a designated infectious disease.

In addition to the new Infectious Disease Emergencies leave, there are many protected, unpaid leaves of absence that remain available to Ontario employees, which include:

• 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 Leave – up to 3 days in each calendar year
• Bereavement Leave – up to 2 days in each calendar year

The above minimum leaves of absence are unpaid, but employees may have greater entitlements to longer leaves or paid leaves, pursuant to their employment contracts or employee policies.

Are employees eligible for Employment Insurance during self-isolation or quarantine?

On March 18, 2020, Prime Minister Justin Trudeau announced sweeping changes to protect Canadians from the effects of COVID-19, including proposed amendments to the Employment Insurance (“EI”) guidelines; particularly for those who are struggling to find work or who are caring for family members. These new rules would be implemented in early April although guidelines on the application process have been released. A temporary measure has been introduced, effective March 15, 2020, to waive the usual one-week waiting period to receive EI “sickness benefits”, for individuals in imposed quarantine. Even those who do not show symptoms of COVID-19, but are quarantined, may apply.

Those who are out of work due to the impact of COVID-19 should inquire about whether they might be eligible for the Emergency Support Benefit or the Emergency Care Benefit (administered through the  CRA), introduced under the federal government’s COVID-19 Economic Response Plan, which has not yet received Royal Assent.

Can an employee be eligible for WSIB benefits because of COVID-19?

For an employee to be eligible for Workplace Safety and Insurance Board (WSIB) benefits as a result of contracting COVID-19, the positive diagnosis of COVID-19 must directly be a result of exposure of the virus in the workplace. If this occurs, then the employee may be eligible for Wage Loss Benefits.

If an employee dies because of the virus, again directly because of exposure in the workplace, the employee’s survivors may be eligible to receive Survivor Benefits from WSIB.

An employee may claim WSIB benefits under the Chronic Mental Stress policy. In order to do so, the employee must prove that the workplace was the predominant cause of the mental stress and they must provide a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders.

Can employees be temporarily laid off because of COVID-19? For how long?

One of the weightiest questions that employees have today during this time of emergency, is whether or not it is legal for an employer to temporarily lay off its employees. The simple answer to this is generally: “no, unless otherwise agreed”. Employees are not permitted to lay off an employee, unless it is explicitly permitted by the employee’s employment contract. An employee who has been laid off without prior agreement can sue the employer for “constructive dismissal” whereby the character of the employment contract has been significantly changed.

In the current economic climate, employers may feel that they have no choice but to temporarily lay off employees due to temporary closure of a business or to weather financial difficulties. Further, employees may want to agree to a temporary layoff, recognizing that their employer’s business may be in a precarious situation, in the hope of returning to their job in the aftermath of COVID-19.

Many employment contracts do not include a provision which allows the employer to temporarily lay off its employees and even those that do may be unenforceable due to technical breaches of employment standards legislation.  Employees who have been laid off should contact an employment lawyer to review their contracts and help weigh their options going forward.

There are also limits around how long an employee lay off can last, generally 13 weeks in a consecutive 20-week period and in some circumstances 35 weeks in a consecutive 52-week period. If the employee is not recalled  before the applicable time limit, the employee is often considered to be dismissed and possibly entitled to termination pay and severance pay under the Employment Standards Act, 2000, as well as other entitlements under common law.

If an employee is fired due to loss of business from COVID-19, are they entitled to a ‘severance package’? What would the package include?

In Ontario, a provincially regulated employer may terminate a worker’s employment for any reason, provided it is not in breach of the employee’s human rights, employment standards or occupational health and safety statutory protections.  With only some narrow exceptions, dismissed employees are entitled to certain minimum entitlements legislated in the Employment Standards Act, 2000, generally based on their length of service. These protections may include notice of termination or pay in lieu of notice, and for some employees with more than five years of service, statutory severance pay.  Employees should be aware that they may be entitled to enhanced protections if they are part of a “mass termination” in which the employment of 50 or more employees at an establishment are terminated within a four-week period.

In addition to the statutory minimums, dismissed employees are also entitled to protections afforded by the “common law” (judge-made law), unless their employment contract contains an enforceable agreement to forgo those entitlements.  At common law, employees are entitled to “reasonable notice” of termination, which is determined on various factors, including: length of service; age; the nature of the position; salary, the availability of alternate employment and other factors.

In the past, special circumstances, such as a downturn in a particular industry have tended to lengthen the reasonable notice period awarded by judges. Given the extraordinary circumstances arising from of COVID-19 and the likelihood that it will be extremely difficult to replace one’s job in the short term, it is expected that COVID-19 may result in a significant increase in reasonable notice periods. The case law is clear that an employer’s economic circumstances are not a proper factor to be considered in judge’s determination of the reasonable notice period.

Generally speaking, in the absence of an employment agreement that clearly says otherwise, a wrongfully dismissed employee is entitled to all of the remuneration and benefits they would have earned during what should have been the “reasonable notice” period.  An employee’s entitlements upon termination of employment depend on their particular circumstances.

If your employment is terminated, you should seek legal advice from an employment lawyer to inquire as to whether your former employer has complied with their statutory, common law, and contractual requirements.

Does an employee have the right to refuse to work because of COVID-19?

An employee may refuse to work on the basis that they believe the workplace to be unsafe due to COVID-19 however, the employee must have a bona fide belief that the environment of the workplace is a risk to their health and safety. In other words, the employee must, in good faith, believe that their health is at risk should they continue to return to the workplace. If a work refusal is initiated, the employer must respond by taking the appropriate steps. Further, the employer is prohibited from retaliating against an employee for exercising occupational health and safety protections, such as a genuinely motivated refusal to work. It is advisable that an employee seek legal advice in order to ensure that their employer has abided by its statutory obligations.

There are certain employees who are not permitted to refuse work. Those who provide emergency or first responder services are included in this group of exempted employees.

Do employees still get paid if their employer requires that they stay home to self-isolate?

In some circumstances, an employer will require an employee to self-isolate and not return to the office to work. An employer may have the right to do so, and if, during self-isolation, the employee does not continue to perform their work duties, the employer may not be required to pay them. However, if the employee can work remotely from home, then they are likely entitled to their pay and benefits.

Can an employee refuse to self-isolate if an employer tells them to do so?

An employer has an obligation to all of its employees to take steps to keep the workplace safe and therefore is entitled to request that an employee to self-isolate if they have reason to believe that the employee may have the virus, has been in contact with a person who has or had the virus, or has travelled in the last 14 days.

In this time of uncertainty and given the frequent changes to employment law, employees may have many questions as to how new mandates may impact their employment and the entitlements their employers are required to provide. In order to ensure that policies, legislation and human rights codes are followed, individuals should seek informed advice from an employment lawyer.

Should you have questions about your employment rights during these uncertain times, contact Zubas + Associates Employment Lawyers at 416-593-5844 or info@employment-lawyers.ca.