Covid-19 Employment Considerations

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)