Covid-19 Employment Considerations

March 2020

Response to the current unprecedented COVID-19 (coronavirus) pandemic has generated concerns from employees and employers alike. Understandably, employees have questions about their rights and entitlement to sick benefits.  The following is intended to provide general guidance and information to employees in the face of changes to their employment status as a result of coronavirus. However, it should be noted that the situation and our governments’ responses are rapidly evolving.

Can I be fired if I’m off because of coronavirus?

If an employee is forced to be absent from work because they are ill or are caring for a sick family member, they are generally protected from termination by the Human Rights Code, which prohibits discrimination on the basis of disability or family status. While the Human Rights Code will protect employees who have COVID-19, are self-isolating or quarantining, or are caring for a family member who is sick or quarantining, the provincial government has amended the Employment Standards Act, 2000 to further account for the challenges employees and employers are facing in the wake of the COVID-19 pandemic.

The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 provides job protected leave for employees unable to work for the following reasons:

  • The employee is under medical investigation, supervision or treatment for COVID-19
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act
  • The employee is in isolation or quarantine in accordance with public health information or direction
  • The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace
  • The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure
  • The employee is prevented from returning to Ontario because of travel restrictions

The legislation further prohibits the employer from requesting a medical note when an employee needs to take leave. However, an employer may request other reasonable evidence such as confirmation that an airline canceled a flight.

The measures are retroactive to January 25, 2020, the date the first presumptive COVID-19 case was confirmed in Ontario.

For federally regulated employers and employees, the Emergency Response Act, 2020 has amended the Canada Labour Code to provide leave related to COVID-19 for up to 16 weeks. Federally regulated employers are also prohibited from requesting a medical note.

Am I entitled to EI benefits if I’m off work?

Anyone without paid sick leave who is off work because of symptoms, self-isolation or quarantine is entitled to sick benefits (EI benefits) under the Employment Insurance Act for up to 15 weeks. As of March 15, 2020, the federal government has waived the one-week waiting period for EI benefits and the requirement for a medical certificate. Employees should call Service Canada at 1-833-381-2725 to request these waivers after completing an online application.

The Canada Emergency Response Benefit (CERB) will provide up to $2,000 per month for up to four months to support to those individuals who are otherwise not eligible for EI benefits, such as the self-employed. The Canadian government has also recognized that the EI system is not equipped to manage the unprecedented high volume of EI applications, as such those individuals who are eligible for EI benefits are also eligible for the CERB. This is to ensure timely income support for all individuals in need. Applications will become available in April 2020 and the benefit will be available for the period of March 15, 2020 to October 3, 2020.

What about layoffs?

Employers may be faced with situations where their business are closed or otherwise drastically reduced because of the coronavirus, leading to temporary layoffs due to a shortage of work. An employee affected by a temporary layoff is entitled to EI benefits. At present, it is not clear whether the federal government will be waiving the one week waiting period for shortage of work layoffs, but it is possible.

Can my employer order me to stay home?

If an employee has symptoms, is subject to a self-isolation or quarantine, or in situations where the employer can’t properly adjust the workplace to allow for social distancing, the employer may have to order employees not to report for work in order to comply with its obligations to provide a safe workplace under the Occupational Health and Safety Act.

Can I refuse to work if conditions are unsafe?

Any employee, even in normal times, has the right to refuse work under the Occupational Health and Safety Act; however, whether truly unsafe conditions exist is a case-by-case objective determination – an employee shouldn’t assume that every situation will meet the threshold and should be careful not to abuse the right – an unjustified refusal to work could be cause for termination.

(special thanks to articling student, Kirstin Drummond, for her assistance with this post)

Author

Christian practises in the areas of commercial litigation and insolvency law. He obtained his Bachelor of Science from the University of Toronto in 2003 and his Bachelor of Laws through Western University in 2006. He was called to the Ontario Bar in 2007 and has appeared on behalf of clients before the Ontario Court of Justice and the Superior Court of Justice. More →