By Alexander Levy
The onset of COVID-19 is challenging employers across the country as they strive to continue working operations (if possible) or, in certain cases, navigate the temporary closure of their businesses.
While employment law (subject to recent emergency legislative measures) has not changed since a month ago, the sheer magnitude of employment related questions brought on by COVID-19 makes it imperative for employers to develop a strategy on how to deal with this virus.
The central issue we have heard from business owners, is the need to understand the obligations they owe to their employees. This issue addresses providing a safe work environment, flexible work arrangements and payments that may be owed to employees who are on leave, have reduced hours or who may unfortunately, be let go.
This article will provide a brief overview of recent developments to employment law and provide answers to common employer concerns. Please note, this article addresses Ontario employment law only for non-union employees. While employment law is relatively similar across provinces (with the exception of Quebec), there are nuances that may require local counsel.
Changes to Legislation
On March 19, Ontario legislature passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 providing an additional job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or daycare closures or to care for other relatives.
The application of this leave broadly applies to employees in isolation or quarantine in accordance with public health information or direction or to employees who have been directed by their employers not to work due to a concern that COVID-19 could be spread in the workplace.
To qualify for these leaves, medical notes are not always required to avoid further strain on the health care system.
Questions and Answers
- If an employer’s business has slowed considerably and there is no work for its employees, can an employer lay off those employees temporarily until business recovers?
The Employment Standards Act (Ontario) (the “ESA”) contains provisions allowing employers to lay off employees temporarily without triggering termination of employment. Generally, the length of the layoff cannot be more than 13 weeks in any period of 20 consecutive weeks. The layoff can be longer if certain conditions are met.
A layoff does not have to be a complete cessation of work. An employee earning less than half the wages they would normally earn would be considered a layoff under the ESA.
However, despite the provisions in the ESA, a unilateral layoff imposed on an employee could be construed as termination of employment if the employer has no history of laying off employees and a unilateral layoff is not permitted by the employee’s contract.
In this unprecedented time, layoffs will likely be common. A company can mitigate its risk that a layoff will be construed as termination by continuing to pay laid off employees a portion of their wages and continuing benefits to the extent permitted under the applicable benefits plan.
Employers should ensure their decision to layoff an employee is not discriminatory and may not be construed as a form of retribution for the employee’s prior actions.
Before laying off employees, we recommend you consult with legal counsel.
2. What is considered discrimination?
The Human Rights Code (Ontario) (the “Code”) prohibits discrimination against employees based on a number of protected grounds. These grounds include, but are not limited to, disability, ethnic origin and place of origin.
Note, the term disability is interpreted broadly and includes past, present and perceived conditions.
If an employee is showing symptoms of COVID-19, has a family member who is sick or has associated with persons showing symptoms, terminating this employee could be grounds for a claim of discrimination under the Code.
Due to this epidemic, unfortunately terminations will likely be common. Employers should be aware of the appearance of any termination and of potential claims that could be made under the Code.
If there are mass layoffs, it will be harder for a laid off employee to claim that he or she has suffered discrimination, but employers must take care to ensure compliance under the Code.
3.What policies and procedures should an employer have to address COVID-19 and to comply with obligations to provide a safe work environment under the Occupational Health and Safety Act (the “OHSA”)
The OHSA requires an employer to provide a safe work environment for its employees. Usually, this means providing appropriate safety gear, maintaining equipment and ensuring the workplace is free of harassment. However, this also applies more broadly to all aspects of safety, including an expectation that the employer will take steps to protect workers from a known virus while on the job.
COVID-19 should spur employers to review and to adapt their procedures and policies to ensure that they continue to comply with their obligations under the OHSA.
Those procedures and policies will reflect the uniqueness of each workplace and job function. Subject to the circumstances of each situation, employers should consider implementing these practical measures:
- Allow employees who are able to work from home to do so;
- Stagger shifts to reduce the number of staff in the workplace at the same time;
- Space work stations appropriately to minimise the possibility of one employee transmitting the virus to another;
- Provide cleaning supplies and hand sanitizers throughout the workplace;
- Provide safety equipment, if applicable to the specific industry;
- Implement a policy that explains:
whom employees should report if they have contracted COVID-19 or are exhibiting
- details on procedures to work from home;
- encourage workers who are vulnerable to come forward to address their concerns and potentially accommodate alternative arrangements.
In a rapidly evolving situation such as COVID-19 , the governments will be sharing information rapidly, updating advice on what employers and employees should be doing. Complying with this advice, will be a minimum expectation for employers.
Please note that employees are not obligated to disclose medical information to their employers. To the extent they do come forward with this information, an employer should have a policy that addresses how it will use this information, how/if it might disclose it and create safeguards to protect it.
4.Does an employer have an obligation to report its employees’ illnesses?
Employers are required to report all occupational illnesses, including COVID-19, to the Ministry of Labour, Training and Skills Development in writing within four days. Employers are also required to notify their joint health and safety committee or a health and safety representative and a trade union, if they exist.[i]
An employer is also required to notify the Workplace Safety and Insurance Board within 3 days after learning of an accident to one of its workers if the accident necessitates health care or results in the worker not being able to earn full wages.
Employers may have difficulty in determining whether an employee who makes a claim for coverage due to COVID-19 under the WSIA was injured while on the job.
In the current environment, the WSIB will have a hard time investigating workplace injury claims so employers should implement safety precautions now as a defence to any claims that employees may have been injured or contracted COVID-19 while at work.
5.An otherwise healthy employee is refusing to come into work and is unable to work from home. Does the employer have an obligation to pay this employee?
Subject to exceptions for certain industries, an employee may refuse to work when he or she has reason to believe that the physical condition of the workplace is likely to endanger himself or herself.
For an employee to refuse work, he or she must first make a claim that he or she has reasonable grounds to believe the workplace is unfit or reasonably dangerous place to work. Workers are entitled to be paid regular wages for at least the initial investigative process.
An employer is then obliged to investigate the complaint and potentially resolve the issue. During this initial investigation, the employee is entitled to continue to be paid. The full scope of this process is beyond this article, but we want to highlight that a refusal to work should be addressed by employers quickly and with the help from legal counsel to ensure compliance with the OHSA.
If the employee is off work for a statutory protected leave, the employer is not obligated to pay the employee his or her regular wages, apart from continuing benefits, subject to any requirements in the relevant employment contract.
6.Can employees take a leave of absence due to COVID-19?
Employees may take many types of statutorily protected leaves under the ESA. Two of the most common leaves of absence are pregnancy leave and parental leave.
The ESA also provides for sick leave, critical illness leave, emergency leave and family caregiver leave, each of which may apply in the present circumstances to particular employees.
Recently, the emergency leave provisions were amended by the Legislature of Ontario, broadly extending the employees protected under this leave and the circumstances under which such leave may be taken.
Please note, all leaves of absence are unpaid. However, employees have the right to return from leave to the same position (or similar position if that position is no longer available) and at the same rate of pay. Further, an employee’s benefits must be continued during a leave of absence, provided the employee continues to make his or her contributions.
Typically, notice and in some cases, doctor’s notes, are required to be submitted by employees prior to taking a leave of absence. However, under the present circumstances, it may not be strictly necessary to provide a doctor’s note.
As a reminder, a Record of Employment (ROE) is required to be issued when an employee experiences an interruption of earnings and will generally be required when a leave of absence is taken.
7.An employee is sick and/or has had contact with someone who has COVID-19. Should this employee be allowed to come to the office? If not, is he or she entitled to pay?
Sick employees or employees who have had contact with a person with COVID-19 should be required to remain home. As mentioned above, employers have an obligation to provide a safe workplace for their employees. Sick employees should be advised to take a statutory protected leave of absence if they deem it necessary and be directed to obtain any sick-leave benefits available to them under the employer’s benefits plans, if applicable.
Whether the employee is entitled to pay depends on each situation. If the employee is capable of working from home, he or she should do so and should continue to be paid. If an employee is not able to work from home, then the employer should analyse factors such as whether the employee was recently travelling, employment agreements and alternative work.
There will certainly be situations where requiring an employee to stay at home without pay will be reasonable, but this will depend on the facts.
8.When can an employee who was previously sick return to the office?
Any sick employee or an employee who is exhibiting symptoms of COVID-19 should be advised to self isolate for 14 days. This is the current medical advice but it may change.
Obtaining a doctors note approving a return to work is the usual requirement but that may not be practical in the current circumstances. As this situation will be evolving rapidly, advice on allowing previously sick employees to return to work should be addressed on a case-by-case basis.
9.Can an employer require a worker to work remotely?
Yes, under the present circumstances, an employer could reasonably require a worker to work from home.
10.What happens if a business is mandated to close by the government?
In such a case, a temporary layoff would likely be considered reasonable and not construed as termination of employment. However, this situation is quite unprecedented, and it is not possible to ascertain how the courts will deal with the layoffs that are likely to occur. The best practice is to maintain payments and benefits to the extent reasonably possible.
If the business must end due to the economic downturn, wages up to the date of employee termination and termination pay are owed to the employees.
11.Can an employer terminate an employee under the present conditions?
The pandemic itself does not prevent an employer from being able to terminate an employee. However, employers should pause and seek legal advice before terminating an employee who has made complaints about the workplace being unsafe, is currently on a leave of absence or otherwise has been recently sick or showing symptoms.
Employers needs to bear in mind that the ESA requires minimum entitlements for employees on termination. In addition, an employee would be entitled to notice or payment instead of notice under the common law (judge made law) unless his or her employment contract states otherwise. The common law provides employees with more generous entitlements on termination than the minimums required by the ESA.
In additional to the financial costs, there are also business considerations. If an employer terminates or lays off employees, it may have difficulty re-hiring them or similarly skilled employees when the economy recovers. There is also a risk of damage to a business’s reputation if it terminates a large number of employees due to COVID-19.
Terminated employees may also claim they suffered discrimination due to various grounds. We suspect there may be many legal claims about employment matters after this pandemic.
12.If an employer find itself in the position of being able to hire workers, how should that employer update employment contracts and other policies?
Employment contracts should specifically provide the employer with the right to temporarily layoff a worker as per the provisions of the ESA. An employer may choose to build in a flexible hourly work schedule to give the company maximum latitude should it want to decrease an employee’s hours while avoiding temporarily laying off a worker. Termination provisions should also be thoroughly reviewed.
Policies should be reviewed, updated and distributed to all employees who should be asked to read and to acknowledge receipt of the policies.
For more information on employment issues or concerns relating to COVID-19, please contact Michael Henry, Managing Partner at Houser Henry & Syron LLP at 416-860-8021 or MHenry@houserhenry.com.
Since 1934, Houser Henry & Syron LLP has provided legal services to Canadian and foreign private businesses, helping them deal with complex legal challenges to grow and to manage risk successfully. We help our clients with mergers and acquisitions, commercial real estate, reorganizations, shareholders disputes and agreements, commercial agreements, employment issues and financing. We also pride ourselves in practising in Plain English.
[i] Government of Ontario, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, Office of the Premier – https://news.ontario.ca/opo/en/2020/03/employment-standards-amendment-act-infectious-disease-emergencies-2020.html