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In response to the COVID-19 crisis and the rapid increase in cases throughout the province, the Government of Ontario has declared a second provincial emergency. Effective January 14, 2021, the stay-at-home order requires Ontarians to remain at home, with limited exceptions and will remain in place until at least February 11, 2021.

The following reviews the impact that these restrictions may have on workers, including in relation to wrongful dismissal, termination, human rights violations or otherwise.

Work from Home

All employers are required to ensure that employees who can work remotely do so unless, for example, the nature of their work requires them to attend on-site at the workplace.

Despite employees carrying out work from home arrangements, employers continue to have obligations to employees under various pieces of legislation, including the Employment Standards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA)” and Ontario’s Human Rights Code (“Code”).

Accordingly, some items to keep in mind include, but are not limited to, the following:

  1. Employers continue to have health and safety obligations to employees under the OSHA. Employers are specifically required to take every reasonable precaution in the circumstances for the protection of workers, and as such, employers may consider developing policies aimed at mitigating any risks presented by work from home arrangements.
  2. Ontario’s Workplace Safety and Insurance Act also continues to apply while employees work from home. As such, employers and employees are expected to continue to report any work-related accidents, injuries or illnesses that occur while an employee performs remote work.
  3. Overtime rules under the ESA continue to apply under remote work arrangements, and therefore, an employee’s working hours should be clearly communicated and any overtime an employee incurs should be documented clearly and compensated appropriately.
  4. In accordance with the Code, employees working from home continue to be entitled to accommodation from their employer up to the point of undue hardship for human rights concerns. In the case of work from home arrangements, many workers may be caring for dependents in the home and require an accommodation based on family status, including, but not limited to, flexible work hours.

For further information with respect to employee rights, while working from home, we encourage you to review our previous blog here.

Non-Essential Workers

In Ontario, the hours of operation of non-essential retailers, including safety supply stores, outdoor markets, motor vehicle sales and liquor and beer stores, have been restricted to between 7:00 am and 8:00 pm.

We expect that these changes in operating hours may lead to workforce changes including, but not limited to, employers reducing employees’ working hours or, alternatively, temporarily laying off employees.

In light of these recent changes, employees are encouraged to remain aware of their rights in the workplace. Specifically, if an employee is temporarily laid off as a result of COVID-19 and the recent state of emergency, they will likely be deemed to be on an Infectious Disease Emergency Leave, a job-protected leave, and will retain the following rights:

  • The right to reinstatement;
  • The right to be free from penalty; and
  • The right to earn credits for length of employment, length of service, and seniority.

If, however, an employee is informed that their temporary layoff has become permanent (i.e., that the employee has been dismissed from their employment), this may entitle the employee to a severance package, even if the employer temporarily reduced its hours of operation (or closed outright) as a result of Ontario’s recent emergency orders.

If you have any questions with respect to Ontario’s COVID-19 emergency measures and the impact they might have with respect to your employment rights, termination of employment, wrongful dismissal, or otherwise, please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or via mlahert@sultanlawyers.com.


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