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Employment Issues Related to COVID-19

  • Can an employee refuse to come into work over a fear of being exposed or contracting COVID-19?

    In Ontario, the Occupational Health and Safety Act (OHSA) protects employees’ rights with respect to refusing unsafe work. This can include the possibility of being exposed to a virus, such as COVID-19.  Employees are however expected to act reasonably in any work refusal. The OHSA protects employees from refusing to partake in unsafe work. In Ontario, if a worker exercises their right to refuse unsafe work, management must investigate their concerns and attempt to rectify the employees’ issues. Until an investigation is completed (by management or if it is being investigated by an inspector from the Ministry of Labour), no other work is permitted in the affected area until an investigation is completed and employees are advised to continue working. Employers are prohibited from acts of reprisal (i.e. penalizing an employee) for attempting to enforce their rights either through the OHSA or the Employment Standards Act, 2000. If you believe your employer has penalized you (or otherwise retaliated against you) as a result of asserting your rights under the OHSA or in relation to safety issues during the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What should I do if I test positive for COVID-19?

    Notify your employer immediately about your results and ensure to self-isolate (quarantine) to avoid further spreading of the virus. Current advice is that quarantine should last at least 14 days however employees should seek the latest information from both Health authorities and their medical practitioner. It is also important to continue to update your employer. Courts expect that employers and employees will work cooperatively in facilitating a return to work. If you have any concerns regarding requests for information in relation to your medical leave, or if you believe your employer has acted in bad faith with respect to taking a medical leave during this time or terminating your employment during the COVID era and you are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer require me to use vacation days to cover any absences from work as a reaction to COVID-19?

    The short answer is yes.

    Under the Employment Standards Act (ESA), employers are entitled to choose when an employee can take their vacation time. Employers may schedule vacations and require employees to take vacation when it suits the needs of the workplace. An employee may be able to use vacation days, sick days or banked overtime instead of taking unpaid time off.

    If your employer does not respect your rights under the ESA or the Human Rights Code, including denial of sick leave, you can be entitled to a range of remedies. We, therefore, recommend seeking legal advice in these circumstances as you may have any questions with respect to your entitlements during the COVID-19 era. Please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • If my employer tells me to stay home, do they have to pay me?

    While there are exceptions, if a business advises its employees to stay at home as a precaution, employees should be paid. This is because the employer has contracted for the person’s services and the person is willing, capable, and able to work.  Some instances in which this may not apply would be individuals who are subject to irregular shifts. This issue is further complicated by the fact that that multiple areas of law apply including statutory provisions and contractual law (through employment contracts and related policies). If you have any questions about your pay and/or benefit entitlements or are otherwise seeking legal advice with respect to your employment during COVID era, whether relating to layoffs, being fired, or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Temporary layoff vs. termination: What is the difference?

    A temporary layoff occurs when an employer cuts back or stops an employee’s work without ending their employment (for example, laying an employee off when there is a shortage of work). In Ontario, the Employment Standards Act, 2000 (ESA) sets out that a temporary layoff can last:

    • Not more than 13 weeks of layoff in any period of 20 consecutive weeks; or
    • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks (however with additional obligations from the employer)

    If an employee is laid off for a period longer than set out above, this would automatically result in a termination of employment, which will impose obligations on the employer (including the requirement to provide termination pay under both statutory and common law, where applicable). It is important to keep in mind that not every employer is able to rely on temporarily laying off their employees, as layoffs are generally speaking aimed at businesses that are cyclical in nature and where an employee and employer are found to have agreed to layoffs as a condition of their employment. The ESA defines a termination as the following:

    • An employee is terminated if the employer dismisses or stops employing an employee, including where an employee is no longer employed due to the bankruptcy or insolvency of the employer.

    When an employer terminates the employment of an employee must accordingly provide the employee with either written notice of termination, termination pay, or a combination of both. Employers often need to provide significantly more payments that what is described under the ESA as they are often subject to common law notice requirements. If you are unsure whether you have been fired or laid-off, or if you have any questions regarding layoffs, wrongful dismissal, or constructive dismissal, especially during the COVID-19 and are seeking legal advice please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer lay me off to avoid termination pay?

    Not necessarily. Employees should not assume that their employer can lay them off, as there are several decisions from courts which state that layoffs should not be relied on unless it can be demonstrated that an employee has contracted for this with the employer (directly or indirectly). Having said this, employers may try to rely on the “lay off”, specifically in this COVID-19 era, to try to avoid paying termination pay. Given the above, if you have concerns regarding your employer and how they have handled your employment during the COVID-19 outbreak, or if you believe you have been wrongfully dismissed or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Is there any financial assistance available if I am not eligible for regular employment insurance (EI)?

    On March 18, 2020, the Prime Minister announced that the Canadian government will introduce an Emergency Care Benefit of up to $900.00 bi-weekly for up to fifteen (15) weeks for workers who do not have access to paid sick leave or employment insurance. This includes individuals who are:

    • Self-employed, who are sick, quarantined, or have been directed to self-isolate;
    • Those taking care of a family member who is sick with COVID-19, such as an elderly parent or any sick dependants; and
    • EI-eligible and non EI-eligible working parents who must stay home without pay to care for their children.

    Applications for this benefit will be available in April 2020.

    The government has also announced an Emergency Support Benefit to support employees who have been laid off and are not eligible for EI.

    The government has further indicated that it will implement an EI Work Sharing Program, which provides EI benefits to workers who are facing a reduction in their normal working hours as a result of COVID-19.

    If you have any questions regarding the above as it relates to your employment, layoff, or termination, contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • My employment is considered non-essential. How will I get paid?

    Employees that are affected by the Government of Ontario’s order to close all “non-essential” businesses (starting March 25) are entitled to take a Declared Emergency Leave under Ontario’s Employment Standards Act (“ESA”). This is a statutory leave, meaning that the job is legally protected during this period.    

    It is important to note that this is an unpaid leave. You can, however, with the support of a Record of Employment from your employer, apply to be granted Employment Insurance (EI). Note that final approval of any application for EI rests with Employment and Social Development Canada, not your employer.   

    Some employers may decide to pay their employees if they are affected by the government order to close non-essential businesses or to offer a “top-up” to EI, however, there is currently no legal obligation to do so.  

    If you have any questions relating to employment with an employer that has been deemed non-essential or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • If my employer terminated my employment during COVID-19, should I consider taking legal action?

    It may indeed be worth considering taking legal action against your former employer as you may be entitled to significant damages beyond what your employer has offered.   

    Having said this, and because there are many factors to consider before bringing a formal claim against an employer, such a decision should almost always be made only after conferring with trusted counsel.   

    Further, the rapidly evolving circumstances around COVID-19 present unique challenges and factors that should be added to the equation to determine what action to take against your employer. This may include a claim for a range of damages, including not just those relating to wrongful dismissal but also bad faith.    

    Independent legal advice can also help to ensure that an employer does not take advantage of the fear surrounding COVID-19 to take away from an employee’s rights.   

    If you have been had your employment terminated been laid off because of the COVID crisis or if you have any questions relating to your employment, whether relating to wrongful dismissal or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can my employer terminate my employment if the company closes because of Ontario's order to close all non-essential businesses?

    If a business/workplace is shut down in relation to COVID-19 and a worker is unable to work from home, then an employer might choose to trigger a temporary lay-off.  

    If an employer chooses to temporarily lay off an employee, then the employer will rely on one of two types of layoffs under Ontario’s Employment Standards Act (“ESA”). The two options are as follows: 

    • Up to 13 weeks of layoff in any period of 20 consecutive weeks
    • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks (employers under this longer layoff are required to provide ongoing support/payments to the employee) 

    If a layoff lasts longer than the time for the type of layoff for which you are placed, you are considered to have had your employment terminated, and you become entitled to all rights relating to termination pay and financial support in finding another job. 

    It’s important to note that, just because your employer chooses to trigger a layoff, it does not mean that you must accept it.  This is because layoffs are not appropriate for all employees or in all industries. For this reason, it is good to secure independent legal advice if you are the subject of a layoff.  

    If you have had your employment terminated or been laid-off because of COVID-19 and want to know your rights, or if you have any questions relating to your employment, layoff, wrongful dismissal or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I am an essential worker. Can my employer force me to undergo a specific medical procedure or test (i.e. a temperature check upon arrival at work)?

    The courts to date have generally held that employers are not entitled to force employees to undergo specific medical tests or procedures. This is because these kinds of requirements have been found to unfairly interfere with an individual’s rights to privacy and control over their own health.

    Having said this, there has been case law (in both unionized and non-unionized workplaces) which has indicated that employers may be able to require employees to take specific medical procedures/tests if it can be demonstrated that there is a sufficiently serious health issue and that the requirement will meaningfully assist with reducing such a risk.

    In the case of COVID-19, it is unclear, for example, whether a simple check of an employee’s temperature will help to reduce the risk to the public and/or workplace. This is because COVID-19 does not always result in expected symptoms and there can be a significant lag between when people contract the virus and when they become symptomatic.

    It is accordingly unclear whether there is sufficient evidence to demonstrate that any one specific action will contribute meaningfully to a safer workplace. Having said this, as more evidence is revealed, employers may be in a better position to demonstrate that requiring a medical procedure is reasonable on balance to maintain the safety of the workplace.

    If you have any questions relating to employment and health matters or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I'm an essential worker. Can I refuse to attend at work because of a fear of contracting COVID-19?

    Employment legislation across Canada supports employees in maintaining their health and safety. This includes responding to employee concerns relating to actual or perceived dangers at work.

    While there are some differences between provinces, generally all provinces allow employees to refuse work that they feel is dangerous. Any such refusal, however, must be deemed as reasonable.

    For example, in Ontario, if a worker believes that they should not be required to work because of fear of contracting COVID-19, the company/organization is required to investigate this complaint and to present a proposed solution. If the employee and employer are unable to reach a resolution, the matter can be reviewed by an inspector from the Ministry of Labour.

    Further, where an employee raises a safety issue, the law states that no other worker is permitted to work until there is a resolution. The only exception is if the other worker(s) is/are informed of the circumstances and nevertheless elect to continue to work.

    If you have any questions relating to employment and health matters or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can an employer use the fact that COVID-19 was unexpected to avoid obligations to employees?

    Much chatter has occurred respecting COVID-19 and force majeure. The idea is that the pandemic should allow individuals to back out of obligations under existing or forthcoming contracts.

    This is because force majeure is a legal concept which states that contracts should not be enforced when there is an unforeseeable event that makes carrying out the obligations under the contract impossible/near impossible.

    A similar concept is called “frustration” of contract. Again, the idea is that a party to an employment contract should not be required to follow through on their obligations because of extraordinary circumstances that are not the fault of either party.

    While employers may attempt to use this as a reason to avoid payment of wages, termination pay, or other obligations, it is important to keep in mind that establishing that a contract has been frustrated requires that specific criteria be met. This includes demonstrating not just that an extraordinary event occurred but also that it is not reasonably foreseeable that the relationship could continue as a result of this event.

    It is accordingly likely difficult to demonstrate that COVD-19 makes it impossible for the employment relationship to continue, particularly since we don’t know how long COVID-19 will have a negative impact on the labour market, on what specific sectors, and the extent of the damage in those sectors impacted.

    Determining whether force majeure or frustration of contract applies to any specific contract or employment relationship, therefore, requires a case-by-case analysis and a thorough review of whether alternative legal principles apply more accurately to the circumstances.

    The reason that this analysis is important is that if a court later determines that an employer misapplied a legal principle, it could result in significant damages payable to employees/former employees.

    If you have any questions relating to employment-related to COVID-19 or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • How do I know if I am part of an "essential business"?

    Governments across Canada are providing ongoing and up-to-date lists of what they deem to be essential businesses. This list is important because it determines which business are permitted to remain open during the COVID-19 crisis.

    The Ontario government, for example, provided a list of essential and non-essential businesses, ordering the non-essential businesses to close as of March 25, 2020. The list of essential businesses included a range of industries and work sectors, including but not limited to those relating to construction, food services and accommodations, telecommunications & IT infrastructure, and transportation.

    COVID-19 is however rapidly advancing and governments across the country are periodically reviewing the effectiveness of the measures. They are specifically working to reduce the spread through reassessing the list of essential businesses to determine whether it should be reduced.

    To this end, the Premier of Ontario announced on April 1 that he is re-assessing the list of essential businesses and that he will likely reduce the list in an attempt to further slow the spread of COVID-19.

    Employees should ensure that they are up to date with respect to the list of essential businesses and how it may impact them, including with respect to their employment and potentially lay-off, wrongful dismissal or otherwise.

    If you have any questions relating to COVID-19 and employment matters, whether relating to lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.


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