COVID19 in The Globe and Mail: Layoffs, salary, EI and more: Your coronavirus and employment questions answered
Employment Lawyer Daniel Lublin answers some frequently asked questions about COVID19 in The Globe and Mail. Dan answers questions that employees have about how coronavirus affects their jobs. These answers are not meant to cover every case and situation. To obtain advice that relates to your personal circumstances, the best route is to contact an employment lawyer.
QUESTIONS REGARDING RETURNING TO WORK
We are being recalled back to the workplace. Do employers have to mandate physical distancing between employees?
As more workplaces across Canada are gradually permitted to reopen, these employers must endeavour to ensure the health and safety of their workers. At a minimum, this means ensuring appropriate physical distancing where possible. But what does this actually require?
New measures must be implemented for lunchrooms, bathrooms, elevators, walkways, reception areas, meeting rooms and other common areas to ensure proper distance can be maintained. Similar to how restaurants must adapt to the new era by designating separate seating arrangements and enforcing limits on the number of patrons at any one time, workplaces will have to ensure similar rules are followed for shared and common spaces. This can also include scheduling set entrance, break and lunch times.
If these types of steps cannot be taken, then common spaces should be sectioned off so as to prevent employees from congregating in them altogether.
Employees should no longer use shared workstations or other equipment at the same time as each other. This means that employers must either erect new physical barriers, such as dividers between computers or otherwise reconfigure workstations in a manner that facilitates appropriate distancing.
Customers and other visitors to the workspace must not be permitted to encroach upon worker’s personal airspace. Just as grocery stores have limited the number of shoppers at any one time and created physical barriers and rules designed to safeguard workers, all workplaces will have to take adequate steps to protect client-facing employees by ensuring a safe distance can be kept from the general public.
Business that do have the luxury of physically ensuring that workers can suitably distance must then adapt by shifting work schedules, or allowing continued remote working arrangements. Although this may be substantially inconvenient, the risk of not doing so can be even greater, including work refusals, health and safety investigations, virus outbreaks, mandated shutdowns and then potential lawsuits from employees whose health and safety was endangered.
In addition to creating more distanced workspaces, employers will also be responsible for the enforcement of distancing measures. This will require training employees and even disciplining those that violate the new measures, including and up to terminating those who repeatedly fail to follow the rules.
Do employers have to supply masks and personal protection equipment (PPE) for employees?
This will depend on the nature of the work performed. Where the essential duties of the job require close personal contact with others, such as health care and other front-line medical workers, parcel delivery, in-home service technicians, restaurant servers, and tradespersons working in enclosed spaces, employers must supply masks and any other requisite protective gear.
In other industries, where there is no personal contact with the general public and appropriate distancing measures can be kept, employers need not provide masks or gloves for employees but will nonetheless be responsible to ensure a clean and sanitized workplace, through regular disinfecting practices. This will require these employers to ensure the appropriate sterilization products and cleaning tools are available and are used. In some cases, this obligation may require the hiring of third-party cleaning agencies to ensure the workplace is thoroughly and properly cleansed.
Finally, while employers are required to provide a safe workplace, this does not extend to the manner in which workers transport themselves to and from work. This means that workers are responsible for their own protections, including masks, while commuting to work. Nonetheless, it is in employers’ best interests to strictly encourage workers to follow public health guidelines, including regular handwashing and wearing masks, including homemade masks, in public places, such as when taking the subway or a bus to work.
Do employers have to accommodate employees who are concerned with taking public transportation to work?
Employers are not required to accommodate fear of using public transportation, unless an individual has a medically recognized justification for avoiding public transit altogether.
A more difficult question arises when workers who are healthy themselves fear that taking public transportation could increase the risk that a member of the same household with a medical condition may become more susceptible to COVID-19. As long as public health authorities continue to permit public transportation to operate, then it must inherently be deemed safe for use. In this situation, employers need not allow these individuals to stay home or work from home but they may have to permit a more flexible schedule to avoid rush hour commutes or otherwise consider an unpaid leave of absence.
I was temporarily laid off and I’m collecting EI. My employer is recalling me back to work but only at 50 per cent of my regular pay. Am I obligated to return and what if I say no?
As the Federal Government rolls out wage subsidies, many employees will suddenly be recalled back to work. But not all companies will be able to provide employees with their regular hours of work or pay.
Employees are not required to resume employment where the circumstances are unreasonable. In 2008, the Supreme Court of Canada decided the Evans case, which concerned an employee who was terminated but then offered an opportunity to come back to work. In that case, the Court ruled that employees have an obligation to return to their jobs where the conditions and the pay are the same or reasonably similar. The Court clarified that if the salary is less or if the working conditions are demeaning or hostile, employees could justify refusing to return and instead claiming damages while looking for other work.
This same analysis applies to situations where employees are offered the opportunity to resume employment following a temporary layoff. Therefore, these employees must be recalled to perform their own jobs and duties, or at least, largely comparable roles. Recall notices cannot be used to force employees to perform more menial tasks that happen to be available.
While the wages offered must be the same or similar, employees have an obligation to act reasonably. Previously, judges were sympathetic to employees who were faced with pay cuts of more than around 10% of their pay, often finding that these individuals were within their rights to reject the reemployment offer. However, I expect this may change as employers will undoubtedly be given more lenience to cut costs in order to survive and employees who refuse available work, even if not entirely comparable, will be held to a higher standard.
What about employees who, for one reason or another, choose not to return to their jobs if recalled? Is there still a severance payment?
If an employee on a layoff is offered his or her same job and pay back within the timeframe permitted by provincial and federal legislation and simply elects not to return, then no termination or severance pay is required. However, these employees would still be eligible to claim lost income for the period of the layoff up to the date of the recall notice.
My company is recalling us back to work on the basis they expect to receive the federal wage subsidy. However, they wish to either claw back or withhold bonuses and commissions to make up the difference between the wage subsidy and our regular pay. Is this legal?
Under the wage subsidy program, employers are expected to make their best effort to top-up employees’ salaries to bring them to pre-crisis levels. Although so far this is an expectation and not a law, employers can be penalized for conduct intended to game the system.
Here, you are being asked to subsidize the difference between the wage subsidy and your regular pay, such that the government is effectively paying your entire salary and your employer is paying nothing. This appears to be precisely the type of behavior that the Government has discouraged.
Employers who abuse the wage subsidy system will have repay the wage subsidy it received and if the employer’s actions are deemed as fraudulent, it could be penalized with fines or even imprisonment
If you do choose to still work at this company, you should make them aware that you do not agree with their proposal and that you reserve your legal rights should you later wish to make any type of claim.
Further, there are rules around the withholding of previously earned amounts, whether it be bonuses or commissions. If those payments were already earned by you but not yet paid out, then an employer cannot withhold them without your agreement. This is particularly the case if the amounts are truly non-discretionary wages and are tied to productivity, rather than complete discretion.
For many employees, bonuses and commissions represents a large component of their overall pay. Much like with the changes to any other element of employee compensation, a sudden and permanent change to the terms of your bonus or commission plan, assuming the change is significant, can be viewed as an attempt to re-write the terms of your compensation. This should only be done with your agreement.
After I was laid off, I applied for and expect to receive the Canada Emergency Response Benefit. My employer has recalled me back to work but by returning, I will actually earn less money than the CERB. Can I refuse the recall since I get more by remaining off work?
No. As above, if your employer is offering you your own position back and assuming the wages are the same or similar, then you cannot refuse that offer and stay home to collect a paycheque from the Government, even if the monthly amount works out to more. The CERB is not intended to provide Canadians with more income than the amount they earned in the first place.
As well, the CERB is only available to workers who have lost their job because of COVID. If your job is in fact available to you again, you are no longer eligible for the CERB. You would be required to repay any CERB payments you receive during a period in which you are not eligible.
I was temporarily laid off very early on in the crisis and I have lost pay for the period of time I was away from work. I received a recall notice but if I return to work, am I still eligible to pursue those lost wages?
Putting aside the legality of the layoff itself, returning to work does not stop you from claiming lost wages for your period of layoff, unless you made an agreement to the contrary.
One exception will be where a business was ordered to stop operating during the lockdown. These companies cannot be sued by the employees who were unable to work during that period.
Keep in mind that if you received some government support during the layoff, such as Employment Insurance or the CERB, you may be required to repay that to the government if you later become entitled to your lost wages through a legal claim or otherwise.
My employer is reopening and I was asked to sign a “fit for duty” form or a liability waiver before I return. Is this allowed?
Many employers are rolling out a variety of new measures to try to meet their obligations to ensure the safety of the workplace for all workers. One of these measures is asking workers to declare that they are healthy when they physically attend the workplace.
While there are currently some restrictions on requesting that workers produce medical notes from doctors, employers are not prohibited from requiring workers themselves to complete and sign forms declaring whether they are or have recently experienced any of the known symptoms of COVID-19 or were in close contact with anyone that has. There is nothing illegal about these requests, so long as, workers are not compelled to disclose information that goes beyond what is needed to make a genuine assessment of a health and safety risk. For example, these forms should not request any information that would identify other illnesses or disabilities or information about religious beliefs, place of origin or ancestry and asking or making decisions based on this information is discriminatory.
ISome employers have considered asking or even demanding that workers sign documents absolving them of any liability in the event that they are exposed or contract COVID-19 while at the workplace. However, this is not a practice that is being used much in Canada, if at all. Likely for good reason. There are a number of problems with requiring workers to sign waivers in these circumstances, including whether it would be done voluntarily and with their consent and whether workers can be asked to waive rights for events that have not yet occurred. Further, it could be very difficult for anyone to conclusively prove where they contracted the virus. In my view, except in extremely limited scenarios these waivers would not be valid. They may also look bad on employers. There are severance instances in the United States where employers garnered significant negative publicity for forcing employees to sign away their rights in exchange for just being permitted to return to work.
In terms of liability waivers, some employers have considered asking or even demanding that workers sign documents absolving them of any liability in the event that they are exposed or contract COVID-19 while at the workplace. However, this is not a practice that is being used much in Canada, if at all. Likely for good reason. There are a number of problems with requiring workers to sign waivers in these circumstances, including whether it would be done voluntarily and with their consent and whether workers can be asked to waive rights for events that have not yet occurred. Further, it could be very difficult for anyone to conclusively prove where they contracted the virus. In my view, except in extremely limited scenarios these waivers would not be valid. They may also look bad on employers. There are severance instances in the United States where employers garnered significant negative publicity for forcing employees to sign away their rights in exchange for just being permitted to return to work.
Can I be required to submit to a temperature check when entering the workplace?
Temperature checks may become a new normal. Many businesses across Canada are turning to temperature checks for customers and clients who visit the workplace, as a screening tool for COVID-19. Workers who enter buildings may also be required by building management to have their temperature taken. Employers too can take the temperature of workers who attend work if done in an unintrusive and safe manner.
Employers should ensure that temperature checks are conducted by qualified individuals who receive training on administering the temperature check in a safe manner and are themselves protected from exposure. Steps must be taken so that workers are not subject to direct physical contact with the screener or others workers, including those who may have to stand in line to be tested. Employers should also provide advance warnings to workers that their temperatures will be taken upon entering the workplace. If anything, this last step may encourage individuals with fever to stay home.
Finally, if any workers do have a temperature that may considered a risk factor of COVID-19, employers should take steps to ensure this is dealt with discreetly and that no worker is singled out for non-entry based solely on personal characteristics (i.e. race, colour, place of original) as opposed to a high temperature.
Our work hours or salary were cut because of the pandemic. Now it may extend until the end of the summer. Can my employer do that? Can this reduced work week be made permanent? Is a reduced work week like a lay-off?
Hours or work and pay are two of the most important terms and conditions of a worker’s job. Employers are only permitted to make minor changes to these important terms without a worker’s consent. If an employer nonetheless makes substantial changes to hours of work or pay, whether in response to the pandemic or otherwise, a worker who does not agree to the changes has the right to treat his or her employment as at an end and sue for lost wages and benefits while looking for another job.
The situation is complicated somewhat by different legislation across the country. Each province or jurisdiction in Canada has a statute that to some degree permits a temporary layoff for a certain period of time. Ontario has taken this one step further by enacting temporary legislation that allows employers to reduce wages or hours. However, even if a layoff or reduced wage is temporarily permitted under legislation, in most cases, a worker can still assert that it amounts to a deemed termination and take action to recover the lost wages while looking for other work.
There is one more twist. Many employers and workers have a written employment agreement. Most of these agreements do not say anything about a temporary layoff, the ability to reduce hours, or to make other major changes to the terms and conditions of work. However, for those individuals where an agreement permits the change, including unionized workers’ collective agreements, then employers are entitled to make the changes because the contract allowed it. This is one of the reasons why workers should have new contract offers, especially those offers made after the pandemic began, reviewed by a competent lawyer.
My workplace has us working from home but does not want us working from our cottage. Can an employer dictate my work location?
Workers who request remote work arrangements do so on the basis that employers who agree with such requests may reserve the right to dictate the terms, including the length and whereabouts of the remote assignment, in this case, at the cottage.
However, for workers who were instructed or otherwise required to work remotely, an employer can only mandate that these workers must be available to work during regular business hours and capable of performing the job that is required. For example, if the worker decides to work from a cottage, he or she must ensure that there is a viable internet connection so that the usual work can be performed. Aside from these basic requirements, if an employer asks that workers remain away from the workplace, where that work is actually performed is irrelevant.
QUESTIONS REGARDING WORKPLACE POLICY
I don’t feel safe going into the workplace because of COVID-19. Can I stay home?
This depends on whether your presence at the workplace presents a reasonable likelihood that you will become infected with COVID-19.
You have the right to refuse to perform your job if it is likely to endanger you. Whether you face a clear and present danger depends on the circumstances and the type of work you perform. A work refusal is only justified when the situation remains unsafe. If you work in an office and an employee near to you is complaining of symptoms similar to COVID-19, you may be justified in leaving that airspace and, if there is no other alternative, staying home until that threat of a potential infection is removed. You do not have an unlimited right to simply stop working or return home whenever you feel like there could be a risk. It has to be a real risk.
Although you cannot be fired for exercising a COVID-19 work refusal due to a good-faith belief that you may become infected, if you stop working without that good faith and reasonable belief, your wages and job may be placed in jeopardy.
Whether your COVID-19 refusal to work is justifiable will depend on whether it is founded upon recommendations of public-health authorities or founded upon unreasonable fears. Stay informed by following municipal, provincial and federal health recommendations posted on official government websites.
The provincial government also recently announced job-protection legislation to protect the job security of employees away from work because of COVID-19. The precise scope of the legislation is not yet known.
I’m suffering from cold-like symptoms and I feel like I need to stay home at least for 14 days for self-isolation. My employer still wants me to work. Can I be forced to work?
If you do have COVID-19 and your presence at work infects other employees, then both you and your employer can potentially be sued. Both employees and employers have a responsibility to protect other coworkers and the general public.
Although each jurisdiction across Canada is addressing this slightly differently, you cannot be fired if you are sick and unable to work due to COVID-19, including even a presumption that you are sick with the illness, as many people with symptoms are still not receiving tests. Some Provinces have also created protected leaves of absence that define whether and when you have the right to assert a leave of absence due to COVID-19 or the possibility of it.
Speak with the local authorities, follow their guidance, and attempt to get tested. If you are indeed sick with COVID-19, then you must immediately notify your employer. You cannot be required to re-attend the workplace until you are no longer sick and do not pose a threat of spreading the illness to others.
Once you can be more certain that you do not actually have COVID-19, then you can be required to work.
My children are not in school or daycare and camp will be closed. Must my employer accommodate this and how?
As more employees are recalled back to work this issue is quickly becoming a pressing concern.
Human-rights laws across Canada require employers to accommodate genuine child-care needs. Therefore, employers cannot fire or treat parents adversely because they must care for their children. This does not require employers to provide parents with all of their preferences for when and how to work but it does mean that employers have to attempt to find a solution that would allow parents to continue to perform their jobs while caring for their children, if this is possible.
In order to properly accommodate parents who must look after children, employers should conduct a practical assessment of the nature and scope of the role and whether the essential conditions of the job can still be performed by a parent who is provided with a flexible working arrangement, such as varied hours of work or remote work. If a solution is possible that will not cause an employer undue hardship, then it must be offered to parents.
In most cases, particularly where parents were working remotely already, it would be difficult for an employer not to tolerate a continued remote work arrangement, at least temporarily until an alternative option can be found.
Parents will also have to explore other arrangements for child care that can be implemented and they may be required to work different hours so a spouse or other family member can care for the children, enabling them to perform their regular duties.
Must an employer provide time off? Again this will depend on type of job the parent performs. If the job can be accomplished with a form of modified work then employers must present this option to parents first. If the job genuinely cannot be performed without any form of accommodation, then the employer must provide a leave of absence, although it would unpaid. Some provinces have created specific job-protected leaves of absence for employees who need to stay home and care for children due to school or day-care closures during the pandemic. In these provinces, parents are entitled to take unpaid time off and their jobs must be reinstated upon the end of the leave.
What types of questions can my employer ask me related to COVID-19?
Employers have to ensure that the workplace is safe for employees. They are entitled to ask a number of questions designed to determine if you pose a health and safety risk, such as:
– Are you exhibiting symptoms of COVID-19?
– Were you in close personal contact with anyone who has exhibited symptoms of COVID-19?
– Were you in the same physical vicinity with anyone who is confirmed to have COVID-19 within the past several weeks?
– Have you travelled to an affected area where there was a COVID-19 outbreak?
– Were you in close personal contact with anyone who recently travelled to an area with a COVID-19 outbreak?
Arguably, this list could also include the question “have you travelled outside of Canada at all?”
You cannot be fired if you answer yes to any of these questions.
However, you can be told to immediately leave the workplace and not to return until such time as there is no risk that you will infect the other workers.
Note that you cannot be targeted by your employer and asked certain questions due to your race, place of origin or ethnicity. Human-rights legislation recognizes the importance of balancing people’s rights to non-discrimination with public health and safety, including the need to address evidence-based risks associated with COVID-19. Questions that are founded upon reasonable health and safety concerns consistent with the recommendations of public-health authorities will be permissible. Questions that are founded upon misguided fears and stereotypes may be inappropriate and amount to discrimination.
I am required to work remotely but I do not have a home office or appropriate equipment to do the job remotely. Is my employer required to provide me with these tools and what if they don’t?
Many businesses that are still operational are adapting to the new reality by allowing or encouraging remote work. For those employees given such a choice, it is important to understand that remote work arrangements are neither a right nor a privilege. It is a form of accommodation that employers are providing. To this end, if an employer offers, but does not require, employees the opportunity to work from home, those employees who accept that offer are responsible to have the tools and resources necessary to capably perform the job, such as computers, printers, internet connections and sufficient data plans.
Many newfound remote or teleworkers have recently asked me whether their companies are obligated to pay for some or all of their home internet or long distance phone bills. If those employees made the choice to work from home and their employers simply accommodated that decision, then there is no obligation to provide additional compensation to offset any additional costs. This is especially the case if the employees could still work from the office but elected not to.
For companies who dictate that employees perform their duties from home, then yes, they must facilitate those work arrangements by providing the proper tools, training and reimbursement of proper expenses. Failing to do so is foolish and should not be held against employees who are unable to complete the work.
I am also asked often whether an employer has to offer remote work to all employees uniformly. The answer is definitely no. Subject to discrimination laws, an employer may choose which staff are offered remote work and which are not.
If we eventually find a vaccine for COVID-19, can my employer force me to get it?
Mandatory employee vaccination already occurs in some industries. For example, hospitals and the health care sector require employees and contractors to have up to date vaccinations for specific diseases. Employers in other industries can also create and enforce their own rules and regulations especially on the basis of workplace safety.
Assuming a safe COVID-19 vaccination is established and approved by Health Canada, employers can insist that all employees obtain the vaccination when it becomes available, so long as there are appropriate exemptions based on human rights requirements, such as a medical or religious basis to refuse a vaccination.
Second, our governments can create rules that we all have to follow for the greater good. For example, several provinces require proof of immunization for children to attend school. Therefore, if and when a safe vaccine is created, governments could potentially try to compel the vaccination of all citizens. This would be deeply controversial. However, if such a law were created, employers would have to comply with these orders and would have to take steps to ensure that all employees and contractors were vaccinated, subject exemptions for either medical or religious reasons.
QUESTIONS REGARDING SALARY
My employer is asking me to accept a large reduction to my salary, a reduced wage or fewer hours. If I don’t accept, I can choose to be temporarily laid off. Is this legal?
You cannot be forced to accept any significant and harmful changes to your employment, including your rate of pay, hours of work or the elimination of other perquisites you are normally entitled to (such as benefits, commissions, bonuses, allowances). Significant changes must be negotiated by agreement. If these types of changes are imposed upon you without your agreement, it can amount to a constructive dismissal, allowing you to claim damages for the loss in pay, or in some cases allowing you to leave work and claim severance while you look for another job.
A temporary layoff falls into the same category as it too is a significant change to the terms of your job.
Like many Canadians, you may decide that some work is better than no work at all and agree to changes to your pay or hours on a temporary basis. But if you do, you should make it clear that you are not waiving any rights to pursue legal action later to recover the lost income (i.e. the difference in your pay). You should also make it clear that you are not agreeing that a temporary layoff will be allowed in the future.
If your employer implements significant changes without your consent, you may have the right to make a legal claim. Whether you do so or not should be discussed with a lawyer. It remains to be seen how Canadian courts will handle situations where employers opted to reduce hours and pay instead of terminating employees. I suspect that employers will be given some additional leeway in these challenging times in order to maintain business operations rather than shutting down.
If my workplace tells me not to come into work because it is closing down for several weeks, will I be paid for the time off?
Your employer has no obligation to pay you when you are not working. But it is an implicit part of any employment contract that the employer must provide work to employees. Where your wages and work are suspended, even for a few weeks, it is technically a constructive dismissal or implied termination. Employees could claim termination pay or severance pay under employment-standards legislation or their employment contract. To avoid this liability, some employers are paying employees during this time off. Others aren’t. Still, many employees may be reluctant to assert constructive dismissal claims right now as the uncertain job market may mean more risk and uncertainty for them. The unprecedented circumstances created by the COVID-19 outbreak may also implicitly introduce an employer’s right to temporarily lay off employees.
This answer will become more complicated and may change if businesses are required to shut down due to a government order or told that it is no longer safe to have any employees continue to work.
If I have COVID-19, am I entitled to my salary while I’m quarantined?
If you have COVID-19 or are otherwise required to self-isolate, then you are not entitled to your regular salary, although you should make a claim under your disability insurance policy or sick-leave policy through your employer, if it provides those benefits. If not, you should be able to use paid vacation time. You would also be entitled to CERB immediately.
You cannot be terminated because you are sick with COVID-19 and you cannot be terminated because you self-isolate owing to the possibility that you have COVID-19.
My place of employment asked me to get tested for COVID-19 and not return to work until I was cleared. Should I legally be paid for the time I spend waiting for my test results?
An employer has an obligation to maintain a safe workplace. In the context of an infectious disease, an employer is justified in sending you home if you recently (i.e. within the last 14 days) traveled outside of Canada, if you were in close contact with anyone who tested positive, and especially if you were showing symptoms consistent with Coronavirus. Your employer is also justified in insisting upon a medical note that confirms it is safe for you to return to the workplace before you can do so. In general, an employer does not have to pay an employee who is not actually performing work. However, this is complicated when there is no clear evidence that you are sick with the virus.
For those that can work remotely, this should be explored and remote work would be paid time.
Furthermore, if you have vacation days or paid sick time you may be able to utilize those benefits for payment. Finally, if you have disability coverage, then you may be covered under the insurance plan.
If none of these options are available, you should apply for employment insurance sickness benefits or the CERB. The federal government recently waived the one-week waiting period for employment insurance sickness benefits.
I am a business owner who does not anticipate being able to hire my employees in the foreseeable future, or only on a part time basis. What are my financial obligations to my staff?
If an employer cannot recall workers back to work, regardless of the reason, then this is a deemed termination from which the ordinary severance obligations will arise. These workers will become entitled to a payment based upon their age, tenure, position and how long it ought to reasonably take them to secure another comparable job.
If an employer can only recall the workers back on a part-time basis, where they previously worked in full-time roles, then this too can be treated by those workers as a deemed termination, requiring the payout of severance. However, not all workers will elect to treat their employment as at an end, rather than work part-time hours. Many workers are fearful of trying to secure other employment at this precarious time so they are tolerating reduced work or pay arrangements, happy to have a job at all, rather than looking for another one.
If possible, these workers should be provided with a choice to either accept part time hours or an appropriate severance package. For those who chose to remain on a part time basis, an appropriate written agreement should be signed.
QUESTIONS REGARDING LAYOFFS
Can my employer temporarily lay me off because of COVID-19?
Many employers are considering or implementing temporary layoffs as a response to a slowdown in business owing to COVID-19. Temporary layoffs of varying lengths are allowed under provincial legislation without it amounting to a termination, so long as you are recalled to work within a certain time period.
During a temporary layoff, you would be eligible to receive employment insurance, and, most of the time, your employee health benefits are continued.
Even though provincial legislation describes temporary layoff restrictions, the legislation does not create a complete right for an employer to implement a temporary layoff. Unless you have an employment agreement that explicitly permits a temporary layoff, then an employee can treat a temporary layoff as tantamount to an immediate termination of employment, giving rise to a claim for severance. But this approach could be risky in the context of the COVID-19 outbreak and given the current economic situation. The COVID-19 outbreak is unprecedented, and the law may imply an employer has the right to implement a temporary layoff as a health and safety measure or because of work shortages that arise in these unique circumstances.
If my employer shuts down because of COVID-19, am I entitled to severance?
Yes. As long as your employer does not declare bankruptcy, then the closing represents a termination of your employment and you would be entitled to claim a severance package if one was not presented to you.
Severance must be calculated with reference to employment-standards legislation, your employment contract, your age, your tenure, your position and precedents. There is a debate right now about whether employers or employees will be afforded more protection by the courts in disputes about severance pay. During the 2008 financial crisis, there were several judges who felt that employees should receive longer than normal severance packages owing to the difficulty they faced in finding other comparable work.
I signed a severance package when I was let go. Now the company is saying that they will not be able to pay the rest of my severance moving forward. Can they do this?
Your severance agreement is a contract. If your ex-employer does not comply with it, especially by refusing to pay the money you are owed, it has violated that contract. Once that contract is violated, you have two options. You can take legal action to compel your ex-employer to comply with the contract and to pay your legal costs to enforce that deal. Or you can put aside the severance contract and take legal action to recover whatever damages you originally suffered.
Unfortunately, I am hearing stories about many companies who are delaying debts or stopping payments owed to ex-employees on the basis that they need to preserve the money. This is really no excuse. Of course, if a company goes out of business then everyone loses. However, up to that point, individuals should insist that companies adhere to the agreements they previously made. The sooner you assert your rights in this scenario, the better.
Does my employer have to provide me with my job back after a temporary layoff ends? Will my tenure continue upon a recall?
Your employer does not need to recall you but you have rights if you are not recalled.
As stated in an earlier posting, a temporary layoff can be illegal from the outset. However, if you do not pursue a legal claim due to the layoff and your employer does not recall you to work within the maximum time frame permitted under the provincial or federal employment statute that applies to you, then your employment is clearly terminated as of that point and you are entitled to severance.
Furthermore, many employees will not necessarily be offered their exact roles back if they are recalled to work. If the role that is presented following a layoff is drastically different and inferior, employees may also be able to treat that as a termination and claim severance, even though there was a recall notice.
If you are recalled to work following a layoff, your employment tenure must be treated as continuous.
I was laid off and my employer has not provided me with a Record of Employment, which I need in order to claim EI. What can I do about this?
Unfortunately, too many companies fumble their obligation to provide a Record of Employment (ROE) in a timely fashion or at all, causing unnecessary delays in applications for Employment Insurance or other benefits. Companies who fail or refuse to provide an ROE can be fined up to $2,000 or the Directors imprisoned for up to 6 months, or both. A court can also award damages against companies who do not issue ROEs in a timely fashion, especially where it was deliberate. In one recent case, an employee was awarded $1,000 for the inconvenience of having to wait almost 5 months for her former employer to issue her ROE.
An ROE is due when income from employment stops or is expected to stop for 7 days or more. If you do not receive the ROE quickly, you should still file your application for Employment Insurance and you or a legal representative should demand the ROE from your employer or ex-employer. Do so in writing so there is a record of it.
What happens if the ROE is not accurately completed? This can occur when there is a dispute about why an employee left his or her job. Employees who voluntarily resign or who are terminated for serious misconduct may be disqualified from Employment Insurance benefits.
It is an offence for an employer to file an ROE incorrectly. Whoever signs the form must certify that the information prepared is accurate. If an employee disagrees with an employer’s view of the events, he or she can protest it in the application for benefits and a Service Canada officer will conduct an investigation and make a decision as to which version of the events was most likely.
I was laid off yet I am still being asked to perform work-related duties, with no compensation offered. Is this legal?
COVID-19 has not created a general reorganization of workplace rights and employees cannot be forced to work for free!
Some employees agree to perform some very limited duties during a layoff. Mostly, this is to assist others to find information or to answer several questions. However, this is their personal choice. If your employer needs you to work, it should recall you and pay you for your time or otherwise offer to compensate you one way or another for the work that you perform.
Moreover, it would be a wrongful dismissal if you were terminated for declining to work without payment during a layoff and you cannot be disciplined for refusing or ignoring work requests that you are not compensated to perform.
Do non-compete contracts apply after a temporary layoff?
Non-compete agreements are intended to apply to those employees who sign them regardless of the reason that the employment relationship ends. Therefore, a non-compete would continue to apply to employees who are on a temporarily layoff or who return to work following a temporary layoff. A non-compete would also still apply to employees who do not return to work following a temporary layoff.
Employees can be required to sign a non-compete upon starting a new job, where it is part of their employment offer. Employees can also be asked to sign a non-compete after their employment begins, but they cannot be forced to sign a non-compete. Also, an employer must provide an employee with something of value, such as a pay increase, extra vacation days, or additional benefits that he or she was not already entitled to, in exchange for signing a non-compete after employment has already started. Otherwise, the non-compete agreement would not be binding.
If an employee returns to work following a temporary layoff and is asked or told to sign a non-compete, this should raise a red flag. Returning to work and signing a non-compete are independent issues and should not be tied together. Further, an employer should not make returning to work conditional upon signing a non-compete, as that should be seen as a form of duress.
I was temporarily laid off at the beginning of COVID-19 with an unknown return date. My employer has now gone silent with no responses to my emails, calls or questions of when I might be recalled back. Is this considered constructive dismissal? When is the appropriate time to reach out?
A temporary layoff is itself, in most cases, a deemed termination. An employer has only very limited rights to impose layoffs for any period of time without pay. A worker may decide to treat a layoff as a termination and claim damages while looking for another comparable job.
Many workers unknowingly or even in some cases knowingly accepted layoffs early on during the pandemic, believing they would be recalled by their employers soon thereafter. Some were indeed recalled back to work. But many were not. For those companies that failed to recall workers, especially if they have resumed operations and recalled other staff, then in most cases this would also be treated as a termination and appropriate severance pay would be owed.
In almost all circumstances, when an employer simply fails to respond to a worker’s multiple requests for an update asking when he or she may be able to return to work, that worker will be justified in presuming that the employer is unable or unwilling to reinstate him or her. This too can be considered a termination.
There is no definitive time period for an employer to respond to a worker’s questions. However, a standard of reasonableness will apply.
QUESTIONS REGARDING EI AND CERB
Can I collect both EI and the Emergency Response Benefit (CERB)? Can I switch from one to the other if the other pays more?
You will only receive one benefit, not both, for the same time period. According to recent updates on the Government’s CERB page, if you stopped working because of COVID-19, you should apply for the CERB, whether or not you are eligible for Employment Insurance. As well, if you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.
As for switching, if you applied for EI benefits on or after March 15, 2020, your application will automatically be switched over to the Canada Emergency Response Benefit (CERB). If you already received EI benefits prior to March 15, 2020, then your entitlement continues under that program. You will not qualify for the CERB for so long as you are receiving EI benefits. If your existing EI benefit period ends before October 3, 2020 and you continue to be out of work because of COVID-related reasons, then you can apply for the CERB at that time.
If I choose to stay home due to COVID-19, am I eligible for EI or CERB?
Voluntary decisions to leave work and self-isolate disqualify you from EI or the CERB. This is where the Government has presently drawn its line. Workers cannot lay claim to these benefits unless they were compelled to stop working due to COVID-19. Individuals who elect to stay home based on a more general concern over the health and welfare of others would not receive Government assistance.
There are exceptions. If the workplace is unsafe, then you should make a health and safety complaint and you may have the right to refuse to work and withdraw from the workplace, especially if the employer is not taking the correct steps to ensure your safety. In these circumstances, you should qualify for the CERB.
However, if your employer is taking the necessary steps to ensure the workplace is safe to perform your job, then should you choose to leave work and stay home, your absence would be unpaid and you would not qualify for Government support.
Human rights laws also require that employers accommodate employees who have a medical condition or who must provide direct care to a parent, child or spouse who has a medical condition that places them in a higher risk category of contracting COVID-19. In these circumstances, an employer must attempt to find a solution that would allow these employees to continue to work but socially distance as much as possible. If an employer fails to accommodate an employee who legitimately requires it in these circumstances then that employee’s decision to stay home should not disqualify him or her from Government support benefits. This would be in addition to human rights damages that would arise through a legal claim against an employer who was capable of accommodation but declined it.
I signed a new job contract but was laid off before I had worked any hours or before I started. What are my options?
You should have received a Record of Employment indicating that you were laid off due to a shortage of work. If you worked enough qualified hours prior to the layoff, also taking into account any prior employment you held during the last year, then you should still be able to qualify for regular EI benefits.
If you don’t qualify for EI benefits, you may qualify for the CERB which the federal government announced it is making available to employees affected by the COVID-19 outbreak but who don’t otherwise qualify for EI. The program is essentially a catch-all for workers who are affected by COVID-19 and unable to work or who are no longer receiving an income.
To be eligible, you must have stopped working due to COVID-19 and had employment and/or self-employment income of at least $5000 in 2019 or in the 12 months prior to the date of your application. If you are a student, you may be eligible for the Emergency Student Benefit, which is meant to provide support to students and new graduates who are not eligible for the CERB.
Finally, there may be legal remedies available against the company, depending on the language of the contract you signed. Even if a contract is broken before employment begins, you may be able to claim damages for some lost income while you search for another comparable job.
I am a temporary foreign worker on a study or work visa. Am I eligible for any benefits?
Temporary foreign workers are entitled to claim EI Benefits. EI Benefits are payable to eligible workers for all days in a benefits period where they are “capable of and available for work.” If a work permit expires, EI payments may stop because the worker is no longer capable or available for work.
The CERB is available to workers residing in Canada who are at least 15 years old and who have stopped working because of COVID-19 related reasons. You need a SIN number to apply so if you have a SIN number and fit the remaining eligibility criteria, you should be eligible for the CERB.
Do self-employed individuals or contractors qualify for any financial protection if they are laid off, become sick or are in self-isolation
Absolutely. The Canada Emergency Response Benefit is designed to provide up to $2,000 per month for up to 4 months of income replacement for workers, including self-employed workers and contractors, who face unemployment due to COVID-19, including those who are sick, quarantined, or in directed self-isolation. To be eligible, they must have had income of at least $5,000 in 2019 or in the 12 months prior to the date of application, which includes income paid by way of non-eligible dividends.
Just like employees, contractors in voluntary self-isolation would not be eligible for these benefits.
I am a business owner. My business has come to a standstill and I have no income coming in. What relief am I entitled to?
You will apply for the Canada Emergency Wage Subsidy (CEWS). This benefit will provide you with a subsidy of 75 per cent of employee salaries up to $847 per employee, per week, for a period of 3 months. To qualify, your revenue must decline by at least 15 per cent from March 15, 2020 to April 11, 2020, and by at least 30 per cent in the following two months, when compared to a baseline revenue. If you own a corporation and are on the payroll, your earnings also qualify for the wage subsidy, assuming that the other preconditions are met.
To qualify for the CEWS you will need to recall your employees back to work. Employees who receive EI or CERB for a period where they are recalled to work will likely be asked to repay these benefits back to the government although the government has not provided specific details on this issue.
You are also expected, if possible, to top up the difference in pay between the CEWS and your employees’ normal wages.
My maternity leave is ending and my employer has just announced layoffs. Will I be able to extend my EI claim?
You likely will not qualify for another EI claim as you need to have a certain amount of eligible hours before making a new claim. However, if you are unable to return to work due to a layoff, I believe you would qualify for the newly announced Canada Emergency Response Benefit which provides income support payments to workers who suffer a loss of income for reasons related to the COVID-19 outbreak.
I work multiple jobs. Am I eligible for benefits if I lose one job but not others?
For EI regular benefits, you must first have no income for at least 7 consecutive days to become eligible, although if you earn other income while on EI, there is a deduction that is applied.
For the CERB, you will need to confirm that you have nor earned more than $1000 in employment and/or self-employment income in a period of at least 14 consecutive days within the first benefit period, and for the entire four-week benefit period of any subsequent claim.
I am going to be laid off. My company says I need to use up my vacation time and then apply for EI. Do they have the right to force me to use my vacation time before I can apply for EI?
The rules surrounding vacation rights depend on which province or industry you work in. However, most provincial employment standards statutes allow an employer to dictate when an employee takes his or her vacation and this allows employers to insist that employees use their vacation time prior to initiating a layoff.
My employer is offering me my job back but with fewer hours or less pay. Can I refuse my employer’s job offer and still be eligible for EI?
This will depend on how long you have received Employment Insurance benefits for already and how much pay your employer is offering you upon return to your job.
To continue to receive Employment Insurance benefits, you must be capable of and available to work but unable to obtain suitable employment. “Suitable” is the key. In general, the longer you receive Employment Insurance benefits, the less selective you can be about the type of work you return to. Early on, if you are offered other work at the same job you held and with comparable earnings, you could not refuse to return and still claim benefits. If you just started receiving Employment Insurance benefits, comparable earnings is defined as 90% or more of your prior income.
As time passes, in order to continue to receive Employment Insurance benefits, you may have to accept an offer to return to similar work even if it would pay you less money than before. You may be required to accept a job offer for 80% of your prior income and then 70% as time passes.
Whether or not you can decline your employer’s offer to work reduced hours and pay and still receive Employment Insurance benefits will therefore depend on the amount of the reduction and how long you have received benefits for when the reinstatement offer is made to you.
I lost my job due to COVID-19 and I was offered severance. Will the severance affect my eligibility to claim employment insurance or the CERB?
Employment insurance is not payable until the period of time covered by the severance pay elapses and only if you still remain unemployed. You should apply for EI benefits within four weeks following your dismissal. If you wait longer, you could lose your EI benefits.
To qualify for the CERB, you must first cease working due to COVID-19 and then be without income for 14 consecutive days. Although the Government has not yet clarified whether a severance payment would be considered income, I assume that it will. Severance payments are normally treated as income and the intention of the CERB is to provide compensation to individuals who do not have other sources of money.
Keep in mind that workers can collect CERB and earn up to $1,000 per month. If your severance is less than this amount, presumably you would be able to claim the CERB at the same time.
I was scheduled to begin a new job but the start date has now been pushed back indefinitely. What can I do?
Your start date is a key term of your employment. An employer who changes your start date, without your consent, is violating that term of your employment.
It can be very difficult to compel the company to maintain your original start date. Therefore, you could agree to the change or condone it by not protesting. You could also register a protest and assuming you eventually start the job, you can still pursue a claim at a later date for any damages you incurred (i.e. lost wages and benefits). Finally, you could treat the delay as an immediate termination and take legal action to recover your damages, especially if you left your last job to take this one. Realistically, you should consider whether you want to burn bridges with your new employer right now through legal action, especially if it is a relatively short postponement.
If you were terminated by your last employer, and you otherwise qualify for employment insurance, then you would make such a claim for regular benefits until the new job starts. However, if you resigned from your last position, you are unlikely to qualify for employment insurance benefits to cover the gap between the job you left and the job you planned to start. You may however be eligible for the CERB.
My long-term disability is ending soon, but my employer can’t provide me with my position back at this time. Must my employer compensate me?
Even if there is a legitimate slowdown of work, this does not liberate the company from its normal employment law obligations. Once you are capable of returning to work and performing your job following a medical leave of absence, then your employer has a duty to reinstate you. If the company delays, avoids or is otherwise unwilling to allow you to resume your employment, then it amounts to a wrongful termination. In addition, you could claim damages for discrimination if there is evidence that your employer’s decision was, in any way, motivated by your illness or disability.
What happens if all or most of the other employees were laid off? You obviously cannot expect to return to a job that does not presently exist. However, even in this situation you generally cannot be forced to accept a layoff without pay and you could treat it as a termination and still claim severance.
The answer is different for those companies subject to a provincial or federal cease work order. They cannot be successfully sued by employees who are unable to work during the period of mandatory shutdown. However, once that mandatory shutdown ends, if the employees are not recalled or allowed to work, it too becomes a wrongful dismissal.
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