Category: Employment Law

Employers

1. Can my company screen its employees for COVID-19 prior to permitting them to enter the workplace, such as by asking them if they have symptoms, or by subjecting them to a mandatory temperature check?

An employer is required to maintain a safe working environment for its employees under the Occupational Health and Safety Act.  Accordingly, an employer may introduce reasonable policies and procedures to make efforts to keep its workplace COVID-19 free.

Employers may wish to ask each employee prior to entering the workplace whether they are suffering from a fever, cough or shortness of breath, and if the answer is yes, to send the employee home.  Some employers may even wish to require their employees to undergo a temperature check prior to entering the workplace, and if their temperature is 37.3 degrees celcius or more, to send them home.

A court is likely to conclude that these measures are permissible, provided that employees are provided with advance notice of the new requirements, the screening is conducted discreetly and as confidentially as possible in the circumstances and that all employees (including management) are subjected to the same screening.

While an employee who is prohibited from entering the workplace would arguably not be entitled to their wages for the day, an employer may wish to consider paying the employee for the day anyway to avoid disputes. If offered by the employer, the employee may also be eligible to take a paid sick day.

It is also important to remember that not all COVID-19 cases will present with a fever and many individuals who are infected will not experience any symptoms.

2. My company has introduced policies, such as social distancing, staggering shifts, prohibiting employees with symptoms to attend at work and encouraging employees to work from home to the extent possible.  But some employees are still refusing to come to work on the basis that the workplace is unsafe and that they have a right to refuse unsafe work in accordance with the Occupational Health and Safety Act.  How should the company respond?

An employee is entitled to refuse unsafe work.  But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is insufficient for the employee to justify their refusal to work.  Rather, the employee must be able to point to a specific issue that the employer has not addressed.  For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work.  In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work.

An employee who refuses to work without a valid legal reason could be disciplined, terminated or be considered to have abandoned their job.

In this scenario, the employer may wish to consider permitting the employee to take an unpaid leave of absence.

3. COVID-19 has caused business to decline significantly and my company is looking to save money, while continuing to employ as many employees as possible. What are my options?

The following options are available:

a) Reducing pay and/or hours of work

If the employee does not agree to the reduction, this could result in a claim for breach of contract.  Depending on the amount of the reduction, this could also result in claims for constructive dismissal, since the employer is not entitled to unilaterally change key or fundamental terms of an employment contract.

However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary.

b) Work Sharing Agreements

These are arrangements in which two or more employees would share the hours and job duties of one position.  This way, the employer will pay out less in wages and employees will be able to work some hours, rather than none at all.  The employer and the employees must all agree to the arrangement.

If the agreement is registered with Service Canada, the employees would be eligible for an Employment Insurance (EI) “top-up”.

A work sharing agreement must be submitted to Service Canada at least 30 days prior to the proposed start date.

c) Temporary Layoffs

There are provisions in the Employment Standards Act, 2000 at section 56 which permit an employer to temporarily layoff employees.  However, to date the courts have not recognized the right of an employer to temporarily layoff employees at common law.  In other words, an employer is only permitted to rely on these provisions if there is an express contractual term between the employer and the employee which permits temporary layoffs.  Otherwise, the employee may have a case for constructive dismissal.

However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary.

It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic.

d) Canadian Emergency Wage Subsidy (CEWS)

The CEWS provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020.

The maximum value of this benefit is $847.00/week per employee.

For an employer to be eligible for this benefit, they must be able to demonstrate that their revenue dropped by 15% between March 2020 and March 2019, or between March 2020 and the average revenue of January 2020 and February 2020.  For continued eligibility, the employer must demonstrate a loss of revenue of at least 30%.

The CEWS may enable employers to continue to employ more of their workers without pay cuts throughout the pandemic.

Employers will be able to apply for the CEWS through Canada Revenue Agency’s My Business Account portal.

e) Deferral of GST and HST Payments

Employers are permitted to defer GST and HST payments until June 30, 2020.

f) Canadian Emergency Business Account (CEBA)

This $25 billion program provides a $40,000.00 loan for certain small and medium-sized businesses that is interest free until December 31, 2022.

g) Deferral of WSIB Premiums

Employers may defer payment of their WSIB premiums until August 31, 2020.

4. My company has introduced reasonable and detailed policies and procedures to keep COVID-19 out of the workplace.  One of my employees has advised that they were diagnosed with COVID-19 and is convinced that he must have been exposed at the workplace.  Is my company liable?

If the employer has Workplace Safety and Insurance Board (WSIB) coverage, and the employee contracted COVID-19 while in the course of their employment, the employee would likely be entitled to various WSIB benefits, such as compensation for any wages incurred.

If the employer does not have WSIB coverage, it will depend on whether the employee can prove on a balance of probabilities that they contracted the virus while at work, and if so, whether the employer was negligent in the course of implementing and enforcing its Coronavirus policies.  For example, if an employer implemented a social distancing policy which complied with the Public Health Ontario and Public Health Agency of Canada guidelines, but took no steps to enforce the policy, despite management’s knowledge that the policy was regularly not followed and treated as a joke by its employees, the employer could be liable.

5. My company has not yet implemented a written Coronavirus policy.  What should the policy include?

This will depend on the nature of the business.  The following list is not exhaustive.

We recommend that an employer’s Coronavirus policy include the following:

a) The individual(s) at the company who employees should contact, if they have symptoms of COVID-19, or believe they have been exposed to or have contracted the virus;

b) A requirement that any employee who has symptoms of COVID-19, or believe they have been exposed to or have contracted the virus not be permitted to attend at work until they provide a medical note to the employer confirming that it is safe for them to return to work;

c) For companies that are considered essential businesses, a requirement or strong encouragement that those who are able to perform the duties of their job from home work primarily from home;

d) A prohibition of gatherings at work – for example, a statement that employees are not permitted to each lunch together in the company’s lunchroom; and

e) A requirement that all employees stay at least two (2) metres away from each other when possible, in accordance with social distancing legislation and Public Health Ontario and Public Health Agency of Canada recommendations.

Since most employees are likely to be working from home, employers should review their working from home policies, in particular with respect to confidentiality, health and safety/workplace accident and productivity issues.

We encourage employers to seek legal advice with respect to implementing a Coronavirus policy.

Employees

1. If I am unable to work because I have COVID-19 symptoms, a family member has COVID-19 or I need to take care of my children who are home from school, is my employer required to pay me?

Unless the employer offers paid sick leave, or the employee is eligible for payment in accordance with another contractual term or employer policy, the employee would not be entitled to pay from the employer.

However, employees who are no longer earning income because of COVID-19 may be eligible for the Canadian Emergency Response Benefit (CERB).  This benefit provides $500.00 for up to sixteen (16) weeks.

2. I am concerned that I may become infected with the novel coronavirus at work.  Am I entitled to refuse to work?  Is my employer required to pay me?

An employee is entitled to refuse unsafe work.  But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is not sufficient for the employee to justify their refusal to work.  Rather, the employee must be able to point to a specific issue that the employer has not addressed.  For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work.  In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work.

An employee who refuses to work without a valid legal reason is not entitled to payment.  The employee could also be disciplined, terminated or be considered to have abandoned their job.

In this scenario, the employee may wish to ask their employer to take an unpaid leave of absence.

3. Can my employer fire me if I miss too much work for a COVID-19 related reason?

Absolutely not!

Employees are entitled to a protected unpaid leave of absence from work for employees who are unable to work for the following reasons:

a) The employee is acting in accordance with an order under the Health Protection and Promotion Act.

b) The employee is in isolation or quarantine in accordance with public health information or direction.

c) The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.

d)The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

e) The employee is prevented from returning to Ontario because of travel restrictions.

For more details, please see section 50.1(1) of the Employment Standards Act, 2000, which was recently amended.

4. I have been diagnosed with COVID-19.  Can my employer require me to disclose this diagnosis to them?

An employer has an obligation to maintain a safe working environment.

Normally, if an employee is sick and is seeking time off or an accommodation under the Human Rights Code, an employer would be entitled to know the employee’s prognosis as it relates to employment, but not their diagnosis.

However, the medical evidence available suggests that COVID-19 is highly contagious.  It would therefore be in the interest of the employer and other employee to know whether one of their co-workers has been diagnosed with COVID-19.  This way, any individuals with whom the employee diagnosed with COVID-19 can stay away from the workplace and self-isolate, so as to reduce the spread of the virus in the workplace.

If an employer becomes aware than an employee has been diagnosed with COVID-19, the employer should take reasonable steps to maintain confidentiality.  Rather than disclosing the identity of the individual to the entire workplace, the employer should communicate that there has been a confirmed case of COVID-19 in the workplace.  To ensure compliance with public health guidelines, it may be necessary for the workplace to close and for all employees to self-isolate for 14 days.

5. My employer is threatening to temporarily lay me off from work, significantly reduce my hours or cut my salary due to a slowdown in business.  Is this legal?

If there is a contractual term that permits an employer to temporarily lay off employees, then it can do so, provided that it complies with the temporary layoff provisions at section 56 of the Employment Standards Act, 2000.  It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic.

An employer is not permitted to unilaterally reduce hours of work or cut an employee’s salary.  This may constitute constructive dismissal and entitle the employee to a severance package.

However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and maybe willing to accept the change in the terms of their employment, as long as it is intended to be temporary.

For more information please contact Employment lawyer Marty Rabinovitch by email marty.rabinovitch@devrylaw.ca or phone 416-446-5093.

“This article is intended to inform. Its content does not constitute legal advice and should not be upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”