We are in the midst of our generation’s hardest times with the COVID-19 pandemic and the effect it is having on our friends, family, and colleagues.
Many employees are now being laid off, or may be offer reduced hours, and find themselves in a position where they don’t know what protections they have under Ontario’s employment laws. Similarly, employers are also navigating a very difficult process of trying to ensure that their businesses survive while trying to make sure their employees are safeguarded where possible.
There are many different words or phrases that are currently being used in the employment law market including lay-off, termination, work-sharing programs. There are also various benefits that are being offered by both the Ontario and Federal governments.
Here we try to simplify those terms in a not so simple world. (click here for more information on wrongful dismissal)
Questions often arise as to whether an employer can terminate an employment contract if the employee chooses not to return to work because of concerns about COVID-19. This will almost always be fact-specific and will depend on the workplace to which the employee is being asked to return.
Flexibility will be needed from both the employee and the employer while we are navigating these COVID-19 issues. Those that have been mandated by the government to self-isolate or be in quarantine should immediately advise their employer, ideally in writing where possible and anyone exhibiting symptoms of the coronavirus should not attend the workplace and/or ought to be sent home immediately on sick leave.
While many of us have the ability to work remotely from home and can perform our usual daily activities, this option should be explored with your employer. An employer has a duty to accommodate the employee who has a situation which prevents them from returning to the workplace and cannot discriminate on that basis. The duty however, is reciprocal, and all employees and employers should try to work together and find all available options before considering whether or not to pursue any type of legal action.
Any attempts to work with the other party will be valuable in the long run if a lawsuit is pursued that seeks to prove that the employer did not accommodate the situation.
Layoffs
If the employer seeks to lay off the employee, temporarily, the employee should request this to be confirmed in writing from the employer. This will prevent any further arguments to be made by the employer that the lay-off was anything other than temporary.
Reduction in Hours[i]
Other options an employer may seek to discuss with an employee is a reduction in their hours. This conversation and any agreement should be reached fairly and without force from either side and, again, be in writing that the reduction is temporary until the COVID-19 pandemic passes. The employee may be entitled to EI benefits to ‘top up’ their pay while their hours are reduced.
In the event that the reduction in hours is forced, the employee may have a claim for constructive dismissal.
Work-Sharing Program[ii]
The government offers a work-sharing program aimed to help employers avoid lay-offs. The program permits two or more employees to share their job duties. The employees and the employer must agree to the arrangement, again agreed upon without force, that this is a situation that they are all willing to participate in and, again, this should be confirmed in writing. The benefit of the work sharing program is that all employees may then apply for employment insurance benefits that will pay for the days on which the employee is not working while the employer continues to pay for the days that each employee works.
Canadian Emergency Response Benefit[iii]
The Federal government announced a taxable benefit of $2,000 per month or $500 per week to workers that are unable to work due to COVID-19 and do not have access to other types of paid leave or income support.
The benefit is available to workers who meet the following criteria:
- Residing in Canada, who are at least 15 years old;
- Who have stopped working because of COVID-19 and have not voluntarily quit their job or are eligible for EI regular or sickness benefits;
- Who had income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and
- Who are or expect to be without employment or self-employment income for at least 14 consecutive days in the initial four-week period. For subsequent benefit periods, they expect to have no employment or self-employment income.
Summary
There are many questions remaining unanswered as to what the rights of both employers and employees may be in the long run following the COVID-19 restrictions being lifted.
We have attempted to highlight some of the situations in which an employee and an employer may find themselves but we encourage all to work together as best they can through this difficult time. Where an employer is not willing to accommodate an employee and appears to discriminate the employee, there may be a case for wrongful or constructive dismissal. Contact Lamont Law for your free p
[i] https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/supplemental-unemployment-benefit/introduction.html
[ii] https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html#work-share
[iii] https://www.canada.ca/en/services/benefits/ei/cerb-application.html
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