Records of Employment (ROEs): 8 Must Knows

The Record of Employment (ROE) is a critical document that employees use to apply for Employment Insurance (EI) benefits, which are administered by Service Canada, under the purview of Employment and Social Development Canada (ESDC).

Employers are required to issue an ROE any time there is an interruption in an employee’s earnings. This can occur for a number of reasons and, below, we answer some of the most common questions that employers and employees have about ROEs.

Why does an employer have to fill out the ROE?

The ROE is essential to the EI benefits application process, therefore it is important that it is filled out accurately.

ESDC reviews ROEs in its determination of the following:

  • whether a person is eligible for EI benefits;
  • what type of EI benefits one may be eligible to receive;
  • what the benefit rate will be; and
  • the period of eligibility to receive benefits.

Issuing an accurate ROE will assist an employee in accessing the appropriate type and amount of EI benefits in a timely manner.

Filling out ROEs can be administratively burdensome and difficult for employers and, because of the potential penalties involved, strict adherence to the process is necessary.  Service Canada has published a 60-page guide to assist employers when they fill out an employee’s ROE however it appears that this guide may not be as helpful as intended.

The Government of Canada stated in their “Employment Insurance Service Quality Review Report: Making Citizens Central” that: 

This complexity has been compounded by insufficient resources to keep up with processing demands and an out-of-date technology platform that is over 40 years old. The result is a processing system that often requires a high degree of human intervention, resulting in delays in processing and delays in citizens receiving EI benefits.

An employer can also contact Call Centres for assistance, but these are overwhelmed, a situation not helped by the current significant increase in questions related to the COVID-19 situation.

What are Insurable Earnings?

Insurable Earnings are certain monetary earnings from Insurable Employment. Most jobs in Canada are considered insurable employment as long as an employee has an employer who controls their wages, schedule and work tasks.

There are certain jobs that are excluded from insurable employment. For example, a person who is employed by an international organization, or a person who controls more than 40% of voting shares of a corporation. Generally, employees and employers pay EI premiums into the EI program. Insurable Earnings are the total amount earnings used to determine the amount of certain EI benefits an eligible claimant may receive.

What code should be entered as the Reason for Issuing the ROE (Block 16)?

The reason for issuing an ROE must be entered at “Block 16” of an ROE, using one of a series of specific codes. This code is used to indicate the reason an employee’s earnings are interrupted.

A code must be entered for all employees whose earnings are interrupted, including casual and part-time employees.

The specific codes have different implications on a claimant’s EI application. For example, inserting the code “M” for dismissal may raise a question with Service Canada whether the dismissal was “for cause” or not. Should an employee dispute the code, Service Canada will commence an investigation.

Generally, employers who have entered an incorrect code have done so because of an honest mistake. If they acted in good faith, they will not be given a penalty. However, if ESDC discovers that the employer provided false or misleading information, the Canada Employment Insurance Commission has the authority to impose a penalty.

Penalties for knowingly providing false, or misleading, information can lead to a fine of up to $5,000 or imprisonment for not more than 6 months or both.

A summary of the current Block 16 codes can be found here.

How and when must the ROE be issued?

Two options to issue an ROE are available to an employer. 

The first method is filing by standard paper document, which is obtained from Service Canada. The form comes in triplicate and must be completed correctly.

A paper ROE must be completed within five calendar days from the later of:

  • the first day of the employee’s interruption in earnings; or
  • the day on which the employer first became aware of the interruption.

An alternate, and now more common option, is that an employer can file an electronic ROE through their Service Canada account. This is commonly done by the employer’s payroll provider, based on input from the employer.

An electronic ROE must be filed within five calendar days from the earlier of:

  • the end of the pay period in which the first day of the employee’s interruption of earnings occurs; or
  • if the employer’s pay cycle has fewer than 13 per year (for example, a monthly pay cycle), then  15 days after the first day of the interruption of earnings.

Importantly, it is the responsibility of the employer to ensure the ROE is completed on time.

As stated earlier the penalty for the employer not abiding by the Employment Insurance Act, 1996, obligations can lead to a fine, imprisonment or both. Therefore it is important that the employer completes the ROE as accurately as possible and ensures it is filed on time.

In addition to penalties levied by the federal government, employers could also be liable for general damages suffered by their employees due to the failure to issue an ROE in a timely manner.

In the constructive dismissal case of Ellis v Artsmarketing Services Inc., the employer intentionally delayed issuing the ROE without good reason, causing the employee financial hardship. When the employer finally did issue the ROE after “dithering” for five months, the employer declared that the reason for issuing the ROE was that the employee quit. The court granted an award of $1,000 in favour of the employee for “inconvenience damages” because the employer took five months to file the employee’s ROE with Service Canada, which far exceeded the deadline.

In another wrongful dismissal case, Morison v Ergo-Industrial Seating Systems Inc., the employer’s “particularly troubling” conduct included taking two (2) months to provide the employee with his ROE, alleging ‘cause’ for dismissal without any reasonable basis, and delaying in paying minimum statutory entitlements, which caused severe financial difficulties for the employee. As the employer was aware of the employee’s financial situation, and the delay was used as financial gain for the employer, an award of $50,000 was granted to the employee in punitive damages. Importantly, the presiding judge, P. E. Roger J., stated that he granted such a large award because this “should deter the defendant and others from similar misconduct in the future, and should mark the community’s collective condemnation of what has happened, thereby achieving retribution, deterrence, and denunciation.”

What is an “interruption of earnings”?

An ROE must be completed any time there is an interruption in insurable earnings, no matter the reason for the interruption. An interruption of earnings could occur because an employee is dismissed , or laid off, retires, resigns, or commences a leave of absence from work (including pregnancy leave, parental leave, compassionate care, medical leave). 

An interruption of earnings occurs when an employee has, or is expected to have, seven consecutive calendar days without work, or if there is a 60% reduction in their regular weekly earnings.

Information needed to fill out an ROE

In order to properly fill out an ROE, an employer must provide detailed information, including the following:

  • the pay period type of the employee (for example: weekly, bi-weekly, semi-monthly, monthly)
  • total insurable hours of the employee
  • total of insurable earnings, by period
  • the reason that the employee has had an interruption in earnings

How to speed up the process

In order for an employee to receive their EI Benefits more quickly, an employer may wish to avoid entering details in Block 18, the “Comments” field. When a comment is included in Block 18, the ROE is removed from the automated processing system and Service Canada has to review it manually. This slows the process down, and may require an agent to call the employer, as well as the employee, for clarification. Comments should only be entered in Block 18 in exceptional circumstances and should not include comments that only confirm information that has already been entered on the form.

The Government of Canada has stated in their “ROE Secure Automated Transfer (ROE SAT) 4.0 – User Guide” that:

We have expanded the codes for reasons for issuing an ROE in the ROE SAT system – which allows the user to clearly specify the reason for which the ROE is being issued, reduce the Comments in block 18 as well as reduce the number of calls from Service Canada to clarify the reason for issuing the ROE.

How can employees access their Record of Employment?

A common question asked by employees, when their employer issues their ROE electronically, is how to access it.

This link may be used to access ROEs.

If you are an employer or an employee and have questions about the legal obligations relating to ROEs, contact Zubas + Associates. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca

Doors Open!: Federal Government Invites Applications for Canada Emergency Response Benefit and Releases Details of Canada Emergency Wage Subsidy in Wake of COVID-19

Today, the federal government launched a CRA portal for Canadians to apply for a new key assistance program for employees, the Canada Emergency Response Benefit. In addition, further details were released last week about the Canada Emergency Wage Subsidy, a proposed assistance program for employers.

Canada Emergency Response Benefit

To assist employees who are no longer working for various reasons due to the Coronavirus (COVID-19), the Government of Canada has initiated a benefit intended to be more easily accessible than Employment Insurance (EI) benefits, called the Canada Emergency Response Benefit (CERB).

This benefit is not only for those who are quarantined and cannot work because they have been diagnosed with COVID-19, but also for those who have lost their job, are caring for someone who is sick with COVID-19, or who are caring for their children home from school or daycare. The CERB may also be available for contract/self-employed workers who are not eligible for EI. Further, employees who have continued to work, but have not received income due to financial disruptions within the business, are also eligible to apply.

Employees who are eligible for this benefit will receive $2,000 for a 4-week period for up to 16 weeks, up to $8,000 in total. Unlike EI regular benefits, this benefit is not determined by a sliding scale. This means that the amount a person receives will not be calculated based on their salary or wages. Rather, it will be $500 per week across-the-board for all individuals who are deemed eligible for the benefit. The benefit will apply retroactively to March 15, 2020. Payments will be made in fixed blocks of 4 weeks.

Who Can Apply?

Among other requirements to be eligible for the CERB, employees must have had an income of at least $5,000 in 2019 or in the 12 months prior to the date of their application and they must not have voluntarily quit their jobs. Further, employees must be unemployed for at least 14 consecutive days in the first 4-week period. Following this 4-week period, the employee must expect that they will have no income whatsoever.

A person does not necessarily need to be ‘laid off’ in order to be eligible for the CERB.

How to Apply?

Applications can be made through an online CRA portal or by phone starting today.

A medical certificate will not be necessary to apply. In an employee’s initial application, they will need to include their personal contact information, social insurance number and must be able to confirm the above-mentioned eligibility requirements. An employee may be asked to provide further documents at a later date to confirm eligibility requirements.

Once an employee becomes eligible for the CERB, an employee can expect to receive payments as soon as 3-5 days after the submission of their application.

If an employee is on maternity/parental leave, it is anticipated that this employee will return to work once their leave ends and they would be ineligible for the CERB. However, if an employee’s leave ends and work is not available to them, they are then eligible to apply for the CERB.

The CERB is taxable however tax deductions will not be deducted initially, and employees who receive payment must report CERB as income when filing their 2020 income tax return.

EI and CERB

Several questions have surfaced since the announcement of the CERB on March 25, 2020 about how this new benefit intersects with EI.

The Government of Canada’s website says the following:

Canadians who are eligible for Employment Insurance and who have lost their job can continue to apply for Employment Insurance.

If you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.

For other EI benefits, including maternity, parental, caregiving, fishing and worksharing, you should also continue to apply.

Canada Emergency Wage Subsidy

On April 1, 2020, the Government of Canada announced further details of the proposed Canada Emergency Wage Subsidy (CEWS), initially announced on March 27, 2020, by Prime Minister Justin Trudeau.

The intentions of this program are apparently to safeguard the jobs of a business’ employees and to prevent further job losses that have swept over Canada due to the COVID-19 pandemic. Further, the subsidy appears to be designed to assist businesses to ease back into their normal practices when the pandemic is over. If a business is deemed eligible, the CEWS would be retroactive to March 15, 2020. The amount of employees working for the business does not affect eligibility for this subsidy. Businesses who would be eligible for the CEWS include individual businesses, taxable corporations, partnerships, non-profit organizations and registered charities. Public bodies, including public universities, colleges, municipal/provincial and federal bodies, schools and hospitals would not be entitled to the CEWS.

Additionally, to be eligible for the subsidy, an employer would have to provide proof that they have had a 30% loss of revenue during March, April and May of 2020 compared to the revenues during the same months of 2019. Employers will have to reapply for each month that they experience a loss of 30% of their revenue.

For eligible businesses, up to 75% percent of an employee’s first $58,700 of their salary “normally earned”, would be covered by the subsidy. The maximum an employer can claim per employee is $847 per week. Calculations for the employee’s subsidy entitlement would be determined based on the salary or wages actually paid to employees. The CEWS would apply retroactively to the 12-week period from March 15, 2020 until June 6, 2020. If eligible, employers may expect to receive payments by direct deposit within 6 weeks.

Employers would not be eligible to claim the CEWS for employees who receive the CERB for the same period.

The Government of Canada would require employers to make best efforts to “top up” the remaining 25% of wages and salaries.

Prime Minister Justin Trudeau announced on April 1, 2020 that this program will be one of trust and if a business is found abusing the program, penalties will be “stiff and severe.”

75% Subsidy and 10% Subsidy

The 75% subsidy and the 10% wage subsidy announced previously are not the same program. Therefore, if a business is ineligible for the 75% subsidy, it still may qualify for the 10% subsidy. Businesses do not need to apply for the 10% subsidy. The subsidy is calculated when a business remits amounts including Canada Pension Plan (CPP) contributions, and Employment Insurance (EI) premiums from salary, wages, bonuses, or other remuneration paid to employees. For businesses that receive both subsidies, the amount received for the 10% wage subsidy would generally be deducted from the amount claimed under the CEWS.

Importantly, employers must be aware that the 10% subsidy is a three-month measure specific to small businesses, charities and non-profit organizations and a decline in revenue is not necessary for eligibility.

We will continue to monitor these and other COVID-19 related initiatives.

For further information on these and other COVID-19 related programs, contact Zubas + Associates at 416-593-5844 or info@employment-lawyers.ca.

*Editor’s Note – Update on the Canada Emergency Wage Subsidy

On April 11, 2020, Bill C-14 received Royal Assent, meaning that the new Canada Emergency Wage Subsidy is now legislated and employers will soon be able to apply for this assistance.

As stated in the April 6, 2020 blog, employers who are deemed eligible will be able to receive 75% wage subsidies up to a weekly maximum of $847 per eligible employee for up to 12 weeks. The wage subsidies will be retroactive to March 15, 2020 and will continue until June 6, 2020. The program may be extended as late as September 30, 2020, possibly with revised qualifying parameters and subsidy amounts.

Currently, the CEWS consists of three periods. To qualify for the first period, for the month of March 2020, employers will need to incur a 15% reduction in revenue in order to be eligible for the wage subsidy. For the months of April and May 2020, the employer will have to show a 30% reduction in revenue. If employers qualify for one period, they will automatically qualify for the following period.

To establish the necessary reduction in revenue, employers are permitted to compare their revenue for each of the months of March, April and May 2020 to either:

    • their revenue for those same months of 2019 (e.g. revenue in March 2020 would be compared to revenue in March 2019); or
    • their average monthly revenue in January and February 2020.

An employer’s participation in the Work-Sharing program will affect the amount of the wage subsidy for which the business will be eligible, however an employer can still apply for the subsidy.

Covering Those who cannot Work During COVID-19: Changes to the Canada Labour Code Leaves of Absence Provisions

In the onslaught of Coronavirus Disease 2019 (COVID-19), many employees are concerned about not being able or available to work due to health issues or family obligations.

We recently wrote about the new “Infectious Disease Emergencies” leave introduced for provincially-regulated employees in Ontario in response to the COVID-19 pandemic, but what about federally-regulated employees?

This week, the Government of Canada has fast-tracked laws in response to COVID-19.  On March 25, 2020, the COVID-19 Emergency Response Act was passed, including amendments to the Canada Labour Code (the “Code”) which applies to employees working in federally regulated sectors (such as the banking, telecommunications, radio and broadcasting, marine shipping, airline, rail, and telecommunications industries and many First Nation activities). 

In summary, the changes to the law relaxed the requirements for medical certificates for the next several months and created a new leave of absence in response to COVID-19.

Medical Certificates

Due to concerns about the over-burdened health care sector, public health and the impracticality of obtaining a doctor’s note in the midst of the COVID-19 crisis, an employee’s obligation to provide certificates supporting various existing leaves of absence from work have been temporarily waived.

Until September 30, 2020, entitled employees may take one of the following leaves, even without a doctor’s note:

  • Compassionate Care Leave (which is up to 28 weeks to provide care or support to a family member who has a serious medical condition with a significant risk of death)
  • Leave Related to Critical Illness (which is up to 17 weeks to care for a critically ill adult family member and up to 37 weeks to care for a critically ill child family member)
  • Medical Leave (which is up to 17 weeks for an employee’s own personal illness or injury; organ or tissue donation; or medical appointments during working hours)

COVID-19 Leave

A new “Leave Related to COVID-19” was also created for up to 16 weeks (which may later be increased by regulation) if the employee is unable or unavailable to work for reasons related to COVID-19.

Notices and Declarations

Under the COVID-19 leave, employees are obliged to give written notice to the employer of the reasons for the leave and the length of the leave that they intend to take. Employees must also give written notice of the change in the length of the leave they intend to take, as soon as possible.

Employers may require employees to provide a written declaration in support of the reasons for the COVID-19 related leave and of any change in the length of that leave.

Job Opportunities

Employees are entitled, on written request, to be informed of every employment, promotion or training opportunity (for which they are qualified) that arises during the period when they are on COVID-19 leave. On receiving that request, the employer must provide the information to the employee.

Employees may wish to make the request to avoid missing out on any work opportunity as the workplace adapts to the challenges of COVID.

Protections for Employees

Employers are prohibited from dismissing, suspending, laying off, demoting or disciplining employees because of a leave related to COVID-19. Where an employee is unable to perform the work they performed prior to their leave, the employer may assign the employee to a different positions with different terms and conditions of employment.

Benefits and Vacation

Pension, health and disability benefits and the seniority of an employee continue to accumulate during COVID-19 leave, unless contributions are not made. Employers are required to continue make benefits contributions during the leave, unless an employee opts not to continue to pay their own portion of the contributions. Employee are required to pay their portion of benefits contributions, unless within a reasonable time of the start of the leave, the employee notifies the employer that the employee intends to discontinue contributions during the period.

The new provisions allow vacation to be interrupted to take COVID-19 Leave.

Employment Insurance Amendments

Employees taking any of the above leaves, including COVID-19 leave, should inquire about their eligibility for Employment Insurance (EI) benefits, such as sickness benefits or the new Canada Emergency Response Benefit (CERB).

New Quarantine Leave

On October 1, 2020, the above COVID-19 leave will be repealed and a new provision for “Quarantine” leave of up to 16 weeks, will be incorporated into the existing medical leave provisions.

Job Security and Redress

Employees should be aware that, despite the protections afforded to them by the Code, taking a COVID-19 leave or another leave under the Code, will not grant an employee immunity from dismissal or layoff. The prohibitions relating to COVID-19 leave and the broad reprisal protections of the Code are limited in scope and depend the particular set of circumstances. In any event, additional protections are in place for employees, who experience a breach of their human rights or unjust dismissal or wrongful dismissal.

For legal counsel about your employment rights and obligations as they relate to COVID-19, contact the team at Zubas + Associates Employment Lawyers at info@employment-lawyers.ca or 416-539-5844.

Cutting Through the Crazy of COVID-19: 10 Top-of-Mind Employee Questions Answered

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.