COVID-19 & Employment Rights: Everything You Need to Know

Both employees and employers in Ontario and British Columbia are contacting us with varying questions about their workplace and employment rights. Workers want to know what protections they have under labour and employment law. Employers are seeking guidance on how to maintain a functioning business during the COVID-19 response.

Employee Questions About Coronavirus
What are my employer’s responsibilities where a safe work environment is concerned?
An employer has responsibilities under occupational health and safety legislation to maintain a safe and healthy work environment. Anyone who meets the criteria for self-isolation and quarantine should be advised by their employer to do so. Anyone who is exhibiting symptoms of COVID-19 should be sent home immediately on medical leave.

Can my employer let me go or fire me if I do not want to work because of concerns about coronavirus contamination at work?
If a workplace poses a clear danger to the health and safety of its employees then it may be reasonable to refuse to continue to work. This will depend largely on:

• what the nature of the workplace is;
• the suspected safety risk;
• the individual needs of the employee; and
• what is reasonable in the circumstances.

The Occupational Health and Safety Act protects Ontario employees from discipline or termination in the event that they report or refuse to work as a result of a safety concern. The Occupational Health and Safety Regulation in British Columbia provides that same right.

Anyone who meets the criteria for self-isolation and quarantine should be advised by your employer to do so. Anyone who is exhibiting symptoms of COVID-19 should be sent home immediately on sick leave.

With the threat of COVID-19, employers will need to be more flexible when accommodating the safety concerns of their employees. If the nature of an employee’s job allows for them to continue to work away from the office, it will likely be in the employer’s best interest to provide this option.

Can an employee refuse to self-isolate?
As previously mentioned, all employers have a duty to provide a safe and hazard-free work environment. And so, whether an employee is actually ill from the virus, been in contact with someone who is ill from the virus, or has, as another example, traveled internationally in the last 14 days, the employer would have the right to force that employee to stay home, in order to protect its other employees.

Does my employer have to pay me if they tell me not to come into work due to COVID-19?
Employers are not required to pay employees who have contracted COVID-19 or are in quarantine. Similarly, if your employer has requested that you self-quarantine or has asked staff to go on leave as a result of COVID-19, they are not necessarily required to continue to pay their employees.

If your employer has the ability to allow you to work remotely and you are able to continue to perform your usual duties, then you are entitled to your usual pay and benefits.
Employees may also be able to use vacation days, sick days, banked overtime or access unpaid sick leave protection pursuant to provisional legislation in Ontario and British Columbia.

What are my rights if my employer won’t let me work from home?
It depends on the circumstances. For example, if an employer will not allow you to work from home because your children are home and you have no choice but to care for them, that would be discrimination on the basis of family status under both the Ontario and BC Human Rights Codes.

The employer would have to accommodate to the point of undue hardship. If, however, the employer is asking you to come in to work because the workplace is safe, the company has taken all reasonable precautions and is following the government’s recommendations, then an employee would be obliged to attend.

My child’s school closed due to coronavirus, and I can’t find anybody to take care of them. Do I still have to go to work?
Your employer has a duty to accommodate your situation; it cannot discriminate against you on the basis of your family status. However, you also have a duty to cooperate. You must exhaust all possible solutions (including but not limited to asking family members, seeking out daycare, and proposing reduced or modified hours) before resorting to asking your employer to allow you to take a leave of absence.

Am I owed severance if I am fired or let go due to the COVID-19 pandemic?

Businesses across Canada are being negatively impacted by the response to growing coronavirus pandemic. As a result, many employers have chosen to permanently lay off employees in order to reduce the cost of payroll. Everyone from frontline office staff, to middle managers, to senior executives are being affected.

In Ontario and British Columbia, an employer can terminate an employee or let an employee go at any time for almost any reason, as long as the reason does not violate the employee’s human rights, and is not discriminatory. This is what we call a termination without cause.

In a dismissal without cause, the employee is owed severance pay. In Ontario and British Columbia, the provinces’ respective Employment Standards Act determines the minimum amount of severance an employee should receive. However, it is common law that sets the standard for what a laid off employee should actually receive. To correctly calculate severance pay under common law, we consider the employee’s age, years of service with the company, position, and the terms of their employment contract.

An employer may tell an employee that has been fired due to COVID-19 that they have been let go “for cause.” A termination for cause means that an employer does not have to provide the employee with common law severance. In reality, a dismissal for cause is only reserved for the worst types of workplace misconduct. Employers often apply a for cause dismissal to terminations that do not qualify. Before you accept your employer’s reason for termination during the coronavirus pandemic, you need to talk to an employment lawyer to determine your options.

If you have lost your job due to the coronavirus outbreak, you should contact an employment lawyer to find out what your full rights and entitlements are.

Can my employer put me on a temporary layoff during the coronavirus outbreak?

Can my employer temporarily lay me off? This is the most common question that individuals are asking during this crisis. Your employer may be able to enact temporary layoffs for some or all of their employees to deal with the temporary closure of a business or any financial troubles that may arise as a result of the COVID-19 outbreak.

Ideally, employers should have properly drafted employment agreements or manuals which explicitly allow the company to temporarily lay off its employees by contractual right. Absent a contract allowing an employer to temporarily lay off an employee, it may be more difficult for that employer to enact a temporary layoff.

If an employer puts you on a temporary layoff as a result of a downturn in business, that could entitle you to severance pay. The changes to the terms your job (what you and your employer previously agreed to) would be significant, and may actually be treated as a termination and a wrongful dismissal.

To discuss the specific circumstances of your case, please contact us.

If I agree to take a temporary layoff during the COVID-19 epidemic, does that give my employer the right to do so again in the future?

Many employers in Ontario and British Columbia are placing employees on a temporary layoff during the coronavirus outbreak. Their goal is to eventually bring employees back from temporary layoff once conditions ease and the economy begins moving forward once more.

In the event that an employer does not have a contractual right to temporarily lay off an employee, and that employee agrees to take a temporary layoff in response to COVID-19, the employee should make clear to their employer IN WRITING that they are doing so only due to these exceptional circumstances. The employee must confirm that they do not agree to temporary layoffs being a term of their employment.

In this way, you may be able to take action if your employer tries to place you on a temporary layoff again after your return from a coronavirus-related layoff. You can treat the layoff as a termination (or constructive dismissal) and receive full severance pay. Contact an employment lawyer to secure an appropriate and fair severance package.

Can my employer reduce my pay during the coronavirus pandemic?

It depends.  If you are continuing to work your full-time hours, any unilateral reduction to your pay could be considered a constructive dismissal entitling you to severance.  However, if work hours are reduced or business operations are suspended as a direct result of the pandemic, your employer does not have to pay you for those lost hours. Your main recourse in that scenario would be employment insurance benefits, along with any other temporary relief provided by the government as it comes.

Can my employer change my work location in reaction to coronavirus?

If an employer is changing your work location in good faith to respond to the state of the emergency and improve health and safety, yes. As long as they return you to your prior work location once the pandemic subsides and the government advisories are lifted, it would be permissible.

What is the government doing to aid employees and employers during the Coronavirus pandemic?

An emergency support benefit package has been unveiled by the federal government for employees and employers.  The support package is set to include emergency care benefits for employees who are not eligible to receive Employment Insurance (“EI”) as well as wage subsidies for small businesses.  The plan intends to provide 10 per cent of the salaries for small businesses employees for up to three months to a maximum of $1,375, totalling up to $25,000 per employer. The intended goal of the package is to encourage employers to keep their employees on the payroll during closures and layoffs.  The government has also unveiled a tax deferral program of $55-billion to assist employers in meeting their financial needs.

For individuals, the federal government has announced a new benefit: the Canada Emergency Response Benefit (“CERB”). Use our calculator to find out if you qualify for the CERB.

For employers and businesses, the federal government is rolling out a subsidy: the Canada Emergency Wage Subsidy (“CEWS”).

As the situation continues to develop it is important for both employers and employees to remain aware of further changes and direction provided by the government.