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The second wave of the pandemic is unfortunately well underway in Ontario and across the country. In response, the Government of Ontario has released a new framework to keep the public safe without choking the economy. While employees and employers continue to navigate the pandemic, adjust to the new rules introduced during the second wave and adapt their workplaces accordingly, we wanted to review four things that we thought employers and employees should keep in mind.

1. Having employment terminated during the second wave does not alleviate an employer’s obligation to provide an appropriate severance package.

As the pandemic continues, some employers have had to re-evaluate and adjust the workplace to conform to changing demands. As a result of this, many employees have had their employment terminated. A termination, even if it is the result of a pandemic, does not change an employee’s entitlements upon termination.

How much notice or pay in lieu of notice an employee will be entitled to is influenced by a range of factors including the Employment Standards Act, 2000 (the “ESA”), termination entitlements under a valid contract of employment, or absent an enforceable termination provision, their entitlements at common law. Common law reasonable notice is calculated based on a range of factors that include the employee’s age, the character of their employment, length of service and availability of similar employment. Reasonable notice generally provides for a severance package that is greater than what is offered under the ESA, and generally more than what most employers will offer at the time of termination.

As the labour market remains uncertain, ensuring that an employee receives a severance package that reflects their full entitlements is imperative. Seeking legal advice to review a dismissal and ensure it is not a wrongful dismissal may assist an employee in ensuring they are able to remain secure while they transition into new employment during uncertain times.

2. Employers must take steps to screen employees before entry into the workplace in compliance with Ontario legislation.

The Government of Ontario recently amended regulations under the Reopening Ontario (A Flexible Response to COVID-10) Act, 2020. Under this amended legislation, businesses or organizations must implement a COVID-19 screening tool and screen workers and essential visitors daily for COVID-19 related symptoms and risk factors prior to entry into the work environment. Workers include staff, students, contractors, and volunteers. Essential visitors include individuals who are not employees or patrons but are providing a service to the workplace, such as delivery, maintenance, and contract workers. This requirement is for businesses and organizations that are in stage 3 of reopening and requires that these businesses comply with any recommendations or instructions issued by the Chief Medical Officer of Health on screening for COVID-19.

At a minimum, the following questions should be used to screen employees prior to being permitted entry into the workplace:

  • Whether the employee had travelled outside of Canada in the past 14 days.
  • Whether they have any new or worsening symptoms or signs of COVID-19 such as fever or chills, sore throat, decrease or loss of smell or taste, cough etc.
  • Whether the employee had close contact with a confirmed or probable case of COVID-19.

If an employee answers yes to the screening questions, then they should be advised that they may not enter the workplace and should be sent home to self-isolate and contact their healthcare provider. An employer who sends an employee home should inform the employee of their options regarding entitlements for sick leave, alternative work arrangements, leave of absences or any other statutory or contractual options available to them.

The Ministry of Health published its COVID-19 Screening Tool for Workplaces (Business and Organizations) as guidance for businesses and organizations. This publication provides employers with a list of screening questions.

The screening requirement does not apply to essential workers who travel outside of Canada for work, emergency services, or first responders who may enter a workplace for emergency purposes or patrons.

3. An employee may have options if they experience a second temporary layoff or a reduction in wages.

In the late winter and early spring, many employees were placed on temporary layoffs or experienced a “temporary” reduction in their hours or wages. During the summer, as reopening became widespread, these individuals were recalled and had their previous hours and/or wages restored.

If an employee has been laid off for a second time or has been informed of a reduction in wages, they should consult with an employment lawyer. Changes to an employee’s employment may be considered a constructive dismissal.

Constructive dismissal is where an employer makes significant changes to an employee’s employment that the courts consider equal to a termination of employment. An employee, therefore, has the option to claim that their employer’s actions are a repudiation of the employee’s employment contract. An employee who is successful in establishing that a constructive dismissal has occurred effectively triggers their termination entitlements under a valid contract of employment, or absent an enforceable termination provision, their entitlements at common law.

The previous acceptance of a layoff or changes in the terms of employment may influence an employee’s ability to claim constructive dismissal. Claiming constructive dismissal where an employer can demonstrate that such changes were previously accepted may compromise a claim. For this reason, we strongly recommend consulting with a qualified lawyer before claiming constructive dismissal.

4. Failing to abide by rules under the Reopening Ontario Act, 2000, can result in fines.

In its response to COVID-19, the Ontario Government has issued several emergency orders and continues to implement new ones. These orders have included rules on mandatory screenings, modified closures, use of personal protective equipment and prohibition of social gatherings over a certain number. As businesses try to adapt and remain viable during the waves, some have opted to continue operating contrary to government-mandated restrictions.

In Ontario, failure to comply can lead to significant fines and, in serious cases, imprisonment. These penalties may be ordered under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, the Occupational Health and Safety Act or municipal by-laws where applicable.

Employees can also be subject to charges and fines if they do not comply with legislation.

If an employee has concerns with respect to their safety in the workplace, or the handling of their employer’s decisions in the workplace considering legislation, they should consult an employment lawyer.

If you have questions about a termination of employment, severance package, temporary layoff or the mandated rules for a safe workplace, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.


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