Zubas + Associates in the news “ONCA Employment decision in Waksdale potentially voids thousands of termination provisions” in Canadian Lawyers Magazine


Recently, Zubas + Associates Lawyer, Dan Hassell, was published in Canadian Lawyers Magazine. The opinion piece, which discussed the ONCA employment decision in Waksdale and its impact on termination provisions, is available to read on the Canadian Lawyers Magazine website here and below.

ONCA Employment decision in Waksdale potentially voids thousands of termination provisions

Terminated employees should get a boost from the ruling, says Daniel Hassell

The past few months have been distressing for both employers and employees. First, COVID-19 swept across the world and across Canada, resulting in business closures, layoffs and terminations. Courts then reduced operations and suspended procedural deadlines, leaving most wrongfully dismissed plaintiffs on standby, with limited access to justice.

A glimmer of hope for the prospects of employees who require more than the bare minimum protections of the Employment Standards Act, 2000 (ESA) came from the Ontario Court of Appeal in the recent decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391. The case represents a significant judicial development in the ongoing efforts by employers to limit their liability when terminating employment relationships.

Waksdale boils down to a discrete technical issue regarding the legal effect of a written employment contract and, more specifically, the enforceability of a termination provision that attempts to limit an employee’s entitlements to slightly more than the minimum under the ESA. At issue was whether an unenforceable “for cause” termination provision would render the operative “without cause” termination provision unenforceable as well.

If a termination clause violates the ESA, then the clause is void and the more generous (and nuanced) common law applies.

The principles of the leading case of Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986, summarized in the oft-cited Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII), include the following:

  • Courts should … favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”…
  • Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. …

The court will scrutinize restrictive termination clauses for potential, and often minor, breaches of the ESA. Since Machtinger, the analysis has become increasingly technical.

The Ontario Court of Appeal clarified in Waksdale that the correct approach is to determine whether the termination provisions, read as a whole, violate the ESA. It declined to apply a “severability” clause to separate the “for cause” and “without cause” termination provisions.

Waksdale represents a significant and far-reaching departure in the application of the widely accepted principles used to determine if a termination provision is void for breach of the ESA.

“For cause” termination provisions are often in breach of the ESA, but this violation has been largely inconsequential. Counsel for dismissed employees will now be able to use such breaches to more effectively poke holes in the language of restrictive termination provisions to access typically greater common law entitlements.

A common drafting flaw is to overlook a narrow distinction between the ESA and the common doctrine of just cause. Pursuant to the ESA, “An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial … ” is not entitled to statutory notice of termination/termination pay, or severance pay. The common law standard of just cause is a somewhat broader.

Employment lawyers are frequently presented with the following scenario:

  • An employee is dismissed for reasons beyond their control, such as restructuring, changing business needs, and more recently the impact of COVID-19.
  • The dismissal is therefore “without cause,” meaning the employer is not taking the position that the employee engaged in egregious misconduct and ought to have been ‘fired on the spot.’
  • On legal review it is determined that:
    • the “without cause” termination provision is technically sound and on its own would probably be enforceable;
    • the “for cause” termination provision (which is not being relied on) is technically in breach of the ESA and probably unenforceable; and
    • the two clauses are not entangled.
  • Assuming there was no other basis to invalidate the employment contract, prior to Waksdale, the “without cause” provision would probably be enforceable.

Now the likely outcome will be the exact opposite. The court will declare the entire termination provision void, and not just the “for cause” provision.

Waksdale is ground-breaking because of the sheer volume of employment agreements likely impacted, especially given the unprecedented number of terminations due to COVID-19. Statistics Canada reported that unemployment rates in May 2020 reached a record high of 13.7 per cent.

The decision in Waksdale represents some respite for wrongfully dismissed employees, many of whom may now have significantly greater entitlements.

Employers may want to have their employment contracts updated with enforceable termination provisions that are reasonable and not overly restrictive.

Employees would be prudent to have their termination provisions reviewed by an employment lawyer.

Zubas + Associates in the News “Good Negotiations need faith more than fear” in Canadian Employment Law Today

Recently, Zubas + Associates Lawyer, Ted Flett, was published in Canadian Employment Law Today. The opinion piece, which discussed tips for HR professionals preparing for a phone call with a lawyer, is available to read on the CELT website here, by pdf here and below.

Good negotiations need faith more than fear

5 Tips for HR Professionals preparing for a phone call with a lawyer

AS EMPLOYERS tighten their purse strings while the business impacts of the coronavirus (COVID-19) pandemic take hold, in-house HR professionals are likely to see a reduction in budget and resources. Some have already. The pre-COVID-19 days of punting a file to external counsel in which an employee, or former employee, has lawyered up may be long gone. Today’s HR practitioner is being called on to rep- resent the employer’s interests in the dispute, in a cost-effective and efficient manner.

Whether it’s a negotiation on the terms of a termination settlement, or with respect to the conditions of a workplace investigation inter- view, the thought of talking to a lawyer of a former or current employee by phone is about as compelling as public speaking naked. However, putting a pause on a letter-writing campaign — where one can hide behind a keyboard — and taking a matter to a phone call could help clear an impasse in a negotiation.

The prospect of such a call could conjure up fears of thinking that you’re about to enter a booby trap in which the lawyer will trip you up, trick you into a confession or twist your words later. And the stakes are not insignificant. The phone call can forge a path toward resolution or could ignite greater conflict in equal measure. The latter is more probable with inadequate preparation.

But HR practitioners should summon confidence in what they bring to the table in a negotiation or a discussion with a lawyer. When an employer’s HR specialist, rather than a lawyer, responds to my correspondence, I see a clear opportunity to resolve the matter amicably; not to mention comparatively faster and cheaper. And it’s not because I plan to bamboozle the person. There are approaches that an HR practitioner can adopt to maximize the call. Here are five helpful tips to prepare for and manage the dreaded phone call with a lawyer. Of course, your standby negotiation techniques — from BATNA (best alternative to a negotiated agreement) to MESOs (multiple equivalent simultaneous offers) — still apply.

Limit the scope of the call. If the communication has been through letters or by email and the lawyer requests a phone call “to discuss the matter,” be available while also following your workplace procedures. In advance of the call, ask whether there is a particular topic or position that the lawyer wishes to discuss, if such is not obvious. This clarification will help provide scope to the conversation and guide your preparation. Have relevant documents on hand for the call, including all correspondence exchanged, and review these in advance.

Determine who leads. While some subscribe to the theory in a negotiation that it is best to lead by speaking first, there are benefits to active listening. When the call begins, if the lawyer has requested the call, let them start the conversation. Pre-supposing what opposing counsel will argue or say is a mistake, particularly if there has been a moderate passage of time between the request for the call and the call itself. The employee’s position or circumstances may have changed since then.

Conversely, if you have requested the call, be prepared to start the dialogue as to what you are seeking and what information you feel is helpful to provide. Organize your thoughts in a few bullet points.

Write it down. Take careful and detailed notes of what the lawyer is saying to help organize your thoughts for a response and to assist with formulation of future arguments. If some in- formation shared by the lawyer is surprising or seems out of context, ask to confirm it to ensure you understand correctly.

Formulate your response. Take confidence in knowing that you are likely closer to the true and precise facts of a story than the lawyer. You have the benefit of a documented history on the employee, buttressed by the employee’s HR file, information from colleagues and witnesses. This is not lost on the lawyer who will naturally have some expectation that you will be more apprised of some of the finer points relevant to the matter at hand and will inquire accordingly.

However, knowledge of the information does not require you to disclose it. Ascertain what information you feel can be disclosed in advance of the call. Take pauses during the call to formulate your thoughts and answers; do not feel rushed. If in doubt during the call, advise that you must follow up with the lawyer later. If you don’t know the answer, don’t make one up or speculate in the moment.

Do not allow the lawyer to leverage a supposed power imbalance. Label interrupting when it happens.

Consider whether documents that are requested by the lawyer are best provided during the call via a quick email or afterwards. Sending documents in the moment without careful review is not recommended, as this may result in disclosing more than you had wanted. Further, the transmission may extend the call unnecessarily as the lawyer reviews them hurriedly, without sufficient time to read them in their entirety.

Concluding the call. At the end of the call, confirm any outstanding matters for follow-up. Establish feasible deadlines to help prioritize your- self and keep the lawyer accountable to you.

Should the call get out of hand, driven more by passion than reason, or if you feel you are making no progress and speaking in circles, wrap up the conversation and suggest that you reconnect at another time once you have had the time to reflect, consider the matter further or have sought additional advice.

Special thanks to a handful of astute HR professionals with whom I have negotiated in my practice who spoke to me on the condition of anonymity.

Special thanks to a handful of astute HR professionals with whom I have negotiated in my practice who spoke to me on the condition of anonymity.

ABOUT THE AUTHOR – Ted Flett

Ted Flett is a lawyer with Zubas + Associates Employment Lawyers in Toronto, practising employment law and human rights law. He can be reached at (416) 593-5844, Ted@employment-lawyers.ca or by visiting www.employment-lawyers.ca.

Ontario Government Attempts to Help Employers by Bolstering Lay Offs

New Regulation Has Hang Ups: Infectious Disease Emergency Leave, O Reg 228/20

In the midst of the novel Coronavirus disease (COVID-19) pandemic, employers have been raising concerns that the temporary layoff and termination provisions of the Employment Standards Act, 2000 (the “ESA”) are ill suited to address the circumstances they are facing. Meanwhile, many employees have been laid off from work and forced to elect to agree, acquiesce or object to temporary layoffs and assert that they have, in effect, been constructively dismissed from their jobs. Constructive dismissal is a unilateral change to an employment contract by the employer.

As the Ontario state of emergency is repeatedly extended – most recently until June 30, 2020 – employers continue to struggle to manage their workforce while enduring significant revenue losses. Meanwhile, employees continue grapple with difficult decisions about their livelihood and volatile job security.

The provincial government has attempted to respond to these concerns.

New Regulation

On May 29, 2020, the Government of Ontario introduced the Infectious Disease Emergency Leave, O Reg 228/20 (the “Regulation”). The Regulation replaces the previous Infectious Disease Emergency Leave Regulation (O Reg 66/20) and amends the ESA provisions regarding the recently introduced infectious disease emergency leave, layoffs, constructive dismissals and automatic terminations. The Regulation applies mainly to non-unionized employees.

“The Ontario government is taking steps to help ensure that as the economy gradually and safely reopens workers will have jobs to return to and businesses will be protected from incurring unsustainable termination costs,” the government stated in a press release.

The COVID-19 Period

Firstly, the Regulation creates a “COVID-19 period” from March 1, 2020 to six weeks after the current declaration of emergency in Ontario ends. Given the province’s announcement on June 2, 2020 to extend the declaration of emergency to June 30, 2020, the COVID-19 period will expire on August 11, 2020 at the earliest.

Infectious Disease Emergency Leave

The Regulation deems non-unionized employees, whose hours of work or wages were temporarily reduced or eliminated during the COVID-19 period for reasons related to COVID-19, to be on infectious disease emergency leave (“IDEL”) retroactively from March 1, 2020 onwards. The IDEL, which was introduced on March 19, 2020 through an expansion of the emergency leave provisions of the ESA, entitles an employee to an unpaid leave of absence in instances where the employee is unable to work for a broad range of COVID-19 related reasons.

Protections to employees on IDEL such as the right to reinstatement, will apply during the COVID-19 period with some exceptions.

Temporary layoffs not deemed a termination or constructive dismissal

The Regulation provides that a temporary reduction or elimination of hours or a reduction of wages during the COVID-19 period for reasons relating to COVID-19 does not amount to a termination, severance or constructive dismissal for the purposes of the ESA.

The Regulation also allows for temporary layoff to exceed the prescribed length of 13 weeks or 35 weeks under the ESA during the COVID-19 period without amounting to termination, subject to some exceptions.

Employees who were already given written notice of termination during the COVID-19 period will not be considered to be on IDEL unless both the employer and employee agree to withdraw the notice of termination.

Apparent purpose of the Regulation

The government appears to have tried to ‘hit the pause button’ on various ESA layoff, termination and severance provisions in response to the COVID-19 emergency, but it may have missed the mark. By placing many employees on deemed IDEL, some of whom will continue to work on a reduced basis, the Regulation appears to have created confusion and uncertainty.

Manner in which the Regulation was introduced

That the Regulation may have been introduced hurriedly without warning or consultation is no surprise, given present circumstances and given that 13 weeks from the start of the COVID-19 emergency was about to elapse in mid-June. Again, the 13-week mark is significant because the general ESA rule is that a temporary layoff will automatically crystalize into a termination after 13 weeks of layoff in any consecutive 20-week period.

Scope of the Regulation

It is clear that the Regulation limits certain employment standards complaints based on termination due to layoff and constructive dismissal. In fact, complaints already filed with the Ministry of Labour arising from temporary reduction or elimination of an employee’s hours of work or a temporary reduction in an employee’s wages by an employer are “deemed not to have been filed”, provided that the reductions occurred in the COVID-19 period for reasons relating to COVID-19.

Common law constructive dismissal or breach of contract law suits decided by the courts are probably still viable, as the ESA generally does not affect civil remedies of employees against their employers. In other words, an employee’s minimum statutory entitlements to termination and severance pay may be limited, but overlapping and often greater entitlements may be awarded by the courts.

Uncertainty surrounding the end of the COVID-19 period

Again, the Regulation is primarily temporary in nature. The bulk of the provisions last only until six weeks after the COVID-19 state of emergency is lifted in Ontario. After that time, the standard protections of the ESA will re-engage. Employees placed on deemed IDEL will also be afforded the additional protections applicable to ESA leaves. More specifically, employees on an ESA leave, such as the IDEL, are entitled to be reinstated to the position they most recently held, if it exists, or to a comparable position, if it does not. The obligation to reinstate an employee does not apply, however, if the employment relationship was ended solely for reasons unrelated to the leave. It remains to be seen what dismissals may now be in breach of the protections of the ESA for a deemed IDEL.

The lack of clarity is not likely to be resolved in the near future. Presently, court procedural deadlines are effectively on hold and, in the pre-COVID-19 circumstances, it often took years to get to trial. Prior to partial court closures, summary judgment decisions usually took several months to be issued and those are limited to cases where the facts are straightforward enough to be decided without a full trial.

It appears that there will be upheaval and litigation arising from layoffs, constructive dismissals and outright terminations following the COVID-19 period, but those will occur no sooner than August 11, 2020.

In the meantime, employees and employers will need to pay close attention to the dates of layoffs, reductions in working hours/wages and dismissals etc., as there are now a host of triggering dates under the Regulation with various consequences.

Analysis by an employment lawyer of each specific set of events will be necessary to determine what an employee’s entitlements may be. If you have questions about layoffs, constructive dismissals or the changes to the new Infectious Disease Emergency Leave, contact Zubas + Associates. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca.

The COVID BUMP: Will Wrongfully Dismissed Employees Score “Coronavirus Damages”?

 

Michela v St. Thomas of Villanova Catholic School may give parties a glimpse into the Court’s position

While Canadians focus on flattening the curve of new cases of Coronavirus (COVID-19) cases, wrongful dismissal plaintiffs and their counsel are hoping for a “bump” of sorts. The millions of Canadians now unemployed probably as a result of the COVID-19 global pandemic declared by the World Health Organization on March 11, 2020 and subsequent recession are hopeful that judges award additional notice period damages.

During this time, employers are terminating their workers’ employment at an alarming rate. According to Statistics Canada, the unemployment rate has risen from 7.8% in March, to 13% in April, 2020. While job loss may be inevitable, employers must ensure that they adhere to Federal or Provincial employment standards legislation as well as the common law, where applicable. Otherwise, employers will risk exposure to potential damages for breach of statute and wrongful dismissal.

The common law (or judge-made law) presumes that employees hired for an indefinite period are entitled to reasonable notice of the termination of their employment by their employer. Notice periods are given in order for the employee to continue to obtain their pay while attempting to find alternative employment. As the Court stated in Lin v Ontario Teachers’ Pension Plan, 2016 ONCA 619 (CanLII).

At its foundation, reasonable notice is the period of time it should reasonably take the terminated employee to find comparable employment.

Commonly, employers will provide “pay in lieu of notice,” where the former employee will receive a lump sum compensation of their pay, or a salary continuation, as if they continued working normally.

When an employee commences a dispute over a notice period, today’s judges still follow the 1960s case of Bardal v Globe & Mail Ltd., 1960 CanLII 294 (ON SC) The Bardalfactors are considered by the Court to determine the length of time of a reasonable notice period. They include:  

  1. Age of the employee;
  2. Length of service;
  3. Character of the employment; and
  4. Availability or job market of similar employment taking into consideration of the experience, training and qualifications of the employee.

This list is not exhaustive. A broad range of other factors, such as health issues, manner of dismissal and language comprehension, can also be considered.

Each wrongfully dismissed employee’s circumstances are particular, and the appropriate notice period will be determined on a subjective basis rather than an objective one. In Paquette v TeraGo Networks Inc., 2015 ONSC 4189 (CanLII), rev’d on other grounds 2016 ONCA 618 (CanLII), the Court stated: “The determination of a reasonable notice period is a principled art and not a mathematical science.”

Notice Period in Times of COVID-19

During these extraordinary times of COVID-19, neither employees nor employers are immune from the pandemic’s impact. Dismissed employees will struggle to find alternate employment, much less comparable employment.  Standard notice periods may be insufficient to bridge an employee to a new position.

Both employers and employees will most likely be in a position of financial difficulty, and it is presently unclear as to which party will bear the burden. Will employers be ordered to “bump up” employee notice periods in order to ensure that employees receive pay during a prolonged period of unemployment? Or will employees have to make do with the notice period given to them by their financially-strapped employers?

Employers may take the position that no notice period should be awarded based on the concept known as frustration of contract in common law and pursuant to the statutory exception in Termination and Severance of Employment, O Reg 288/01 s 2.

Though judges and decision makers may not have case law dealing specifically with termination of employment during a global pandemic to which they can refer, jurisprudence of a similar nature is insightful. Cases in which employers were in financial distress and have had to fire staff may be analogous.

One of the leading cases which addressed this situation is Michela v St. Thomas of Villanova Catholic School, 2015 ONCA 801 (CanLII). In that decision,the Ontario Court of Appeal addressed the question of whether an employer’s financial circumstances are relevant in determining a wrongfully dismissed employee’s reasonable notice period entitlement, and stated:

It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors.

Notice Periods in Difficult Economic Circumstances

In many decisions, both pre-and post-Michela, the Court has asserted that a poor economy may increase a plaintiff’s reasonable notice period entitlement. For example:

Case Name Position Tenure Salary Age Notice Period Judge’s Reasons
Deacon v MacMillan Bloedel Ltd., 1982 CarswellOnt 717   Manager 9 years, 11 months 38 7 months “Another factor, one upon which I place reliance, is that this man was laid off from his employment in a period of economic downturn, which surely made it more difficult to obtain alternate employment. In times other than hard economic times, I would say that a person in the position of Mr. Deacon, and in the circumstances herein, should have received a notice of six months, but the economic factor, in my view, justifiably adds a period of one month.”
McBride v W. P. London & Associates Ltd., 1984 CanLII 1903 (ON SC) Senior Drafts-man 8 years 51 4 months “I accept the evidence of the plaintiff that because of the state of the economy during the period October, 1982 to February, 1984, it was ‘nigh impossible for a senior draftsman to find employment’. Indeed, it was only after the plaintiff took an eight-week computer drafting course that he found employment as a draftsman again.”
Lim v Delrina (Canada) Corp., 1995 CanLII 7271 (ON SC) Corporate Controller 6 months $50,000 42 5 months “…I conclude that the following factors are to be considered when ascertaining an appropriate notice period: (1) The depressed economic conditions of the employer. (2) The lack of available employment opportunities due to depressed economic conditions in a particular industry. (3) That factors 1 and 2 can be considered so as to increase notice but not to decrease it. (4) That economic factors are not to be given undue influence.” “…I find that, given the well known depressed economic conditions of the time, particularly as it affected the plaintiff’s profession, an additional 1/3 (one month) should be added to the notice period.” [Emphasis added]
Leduc v Canadian Erectors Ltd., 1996 CanLII 8132 (ON SC)   Project Engineer 6 years $55,800 34 7 months “In the case at bar, the plaintiff, Compton and Dion were of one voice in describing the economic conditions in their industry; generally, as being slow, if not depressed, in 1994. That was the economic climate to be weathered by the plaintiff when his employment was terminated on July 7, 1994 (and the defendant knew it at the time). That was why it took nine months of diligent effort by the plaintiff to secure new employment. Accordingly, I find this to be an appropriate case for the period of notice to be enlarged beyond what otherwise might be appropriate.”
Castelino v Richard Ellis (Canada) Inc, [1997] OJ No 6268   Vice President of Property Management 3 years $77,000 52 8 months “With respect to the availability of similar employment, having regard to the experience, training and qualifications of the employee, I find that this factor also favours the plaintiff somewhat. The evidence is clear that his termination came at a very difficult time in the real estate industry. There was clearly a recession. There were many bankruptcies and receiverships, and the environment was highly competitive. The defendant suggests that this meant that there were lots of jobs available, but equally, I accept the plaintiff’s evidence that there were a lot of people chasing those jobs as a result of the turmoil in the market. The situation was highly competitive and it was a rather difficult climate in which to find employment.”
Sifton v Wheaton Pontiac Buick GMC (Nanaimo) Ltd., 2010 BCSC 353  Shop Manager 16 years $78,000 51 14 months “…that unfavourable economic circumstances may serve to extend the reasonable period of notice if, as a result, the employee is unlikely to find equivalent employment readily and his or her loss is thereby increased, but they will not serve to reduce the reasonable period of notice.”
Zoldowski v Strongco Corporation, 2015 ONSC 5485   Parts Administr-ator 17 years $48,000 39 14 months As part of this determination the court may consider the economic climate the employee is put into when terminated.  If there is an economic downturn, then that may make it more difficult to find a job and may justify a longer notice period…”
Nielsen v Sheridan Chevrolet Cadillac Ltd., 2016 ONSC 1843 Service Advisor 1 year $56,000 27 28 weeks “… in determining reasonable notice, economic circumstances of an employer are not a proper consideration in determining the length of notice to which an employee is entitled upon termination…”
Hampton Securities Limited v Dean, 2018 ONSC 101 (CanLII), aff’d 2018 ONCA 901 (CanLII), leave to appeal dismissed 2019 CanLII 45256 (SCC) Broker 1 year  $117,000 6 months I find that the ordinary notice period for someone in Ms. Dean’s position would be three to four months. I would tend towards the higher end of that scale given the depressed circumstances in the securities industry at the time of termination and fix the initial notice at four months. I extend the notice period by a further two months to compensate her for the additional time it would take to find employment given Hampton’s unjustified allegations of unauthorized trading in the NOT.”

While the court points to economic factors as impacting the reasonable notice period, unlike Laforme J in Lim, judges do not often specify how much of an impact a particular factor had on the determination of the length of the reasonable notice period. As such, it is difficult to pinpoint a substantial increase in the notice periods awarded as a result of economic or financial challenges. Even the precedent in Lim is somewhat unclear – could it be followed to increase notice periods by one month or one third? In the case of a long notice period an increase by one third could amount to several additional months.

Although these decisions and Michela elucidate the Court’s position to date, the global pandemic in which we find ourselves, which is not localized to one region or industry, may render a different decision from the Court.

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.