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Employment Issues Related to COVID-19

This website contains general legal information only. The information on this page is meant to provide insight during this unprecedented occurrence. The developments related to COVID-19 are emerging at a rapid pace and changing constantly. No one should act, or refrain from acting, based solely upon the information provided on this website. If you need specific legal advice based on your particular circumstances, you should contact our firm at 416-214-5111.
  • Can an employee refuse to come into work over a fear of being exposed or contracting COVID-19?

    While there are circumstances where an employee could refuse to work over fear of contracting or being exposed to COVID-19, employees should be careful to avoid refusing to work unreasonably. More specifically, if an employee’s workplace has been deemed essential and the employer has implemented reasonable safety precautions to reduce the risk of contracting COVID-19, the employee could face disciplinary action if they decide not to show up to work. It is important to note, however, that due to the current measures put in place by federal and provincial governments, more flexibility may be given to those refusing to work due to COVID-19 concerns.

    In Ontario, the Occupational Health and Safety Act (“OHSA”) protects employees’ rights with respect to refusing unsafe work. 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 an inspector from the Ministry of Labour), no other work is permitted in the affected area until the 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 Act2000.

    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.

    In Ontario, 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 time when it suits the needs of the workplace.

    An employee may also be able to use vacation days, sick days or banked overtime instead of taking unpaid time off.

    With respect to COVID-19, the Ontario government has implemented job-protected leaves. You can learn more about this here.

    With the above being said, if an employer does not have a history of ordering when an employee can go on vacation, the employee may be able to argue that the employer does not have a right to do so accordingly to the terms of employment (i.e. either as a result of the employment contract or general practice). Specifically, unliteral, fundamental changes to the terms of employment are generally illegal without employee agreement, and usually this in and of itself is insufficient without adequate compensation and/or notice. 

    If you have any questions relating to employment matters in the COVID-19 era, or if you have questions related to vacation, 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 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 used by employers unless it can be demonstrated that an employee has contracted for this with the employer (directly or indirectly). Specifically, unliteral, fundamental changes to the terms of employment are generally illegal without employee agreement, and usually this in and of itself is insufficient without adequate compensation and/or notice.   

    Having said this, many employers are relying on the “lay off”, specifically in this COVID-19 era.

    In proceeding this way, many employers are likely deciding to lay-off employees in the hope that either employees will agree with it (and they can then argue that there was not dispute about the legality) or, alternatively, a court will sympathize with employers because of the unforeseen nature of COVID-19 and its dramatic impact on the economy.

    While this may work, the reality is that employees can equally (and reasonably) argue that they should not be the ones to suffer as a result of the downturn, and in fact, this is a critical time when they need termination pay to support them and their families through this extraordinarily difficult time.  This is particularly the case since there is no telling how long it will take for an employee to find comparable employment in the COVID-19 era and termination pay is specifically intended to help employees during difficult transitionary periods (and to provide greater support when comparable employment is not plentiful).    

    Bottom line, one should not assume that an employer has an unrestricted right to lay-off and, in fact, being laid off may be viewed as an unjust removal of employees’ rights to economic support.

    Finally, and assuming a lay-off is deemed legal, if an employer does not return the employee to work within the timeframe allowed for under the law in the relevant province (and comply with any other conditions relating to layoffs), then the employer automatically becomes liable for termination pay.

    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 any other questions, please contact Toronto employment lawyersSultan 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 25, 2020, the Government of Canada announced the Canada Emergency Response Benefit (“CERB”) to support workers and businesses during the COVID-19 pandemic. The CERB is a taxable benefit and open to workers who have stopped working due to COVID-19 whether or not they are eligible for EI regular or sickness benefits.

    Those who qualify will be provided with $2,000.00 per month for up to four (4) months.

    This benefit is available to workers:

    • Residing in Canada, who are at least 15 years old;
    • Who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019, and October 3, 2020;
    • Who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and
    • Who have not quit their job voluntarily.

    Additionally, the government has also implemented Work-Sharing temporary special measures to support employers and workers affected by COVID-19.

    From March 15, 2020, until March 14, 2021, and not limited to one specific sector or industry, the Government of Canada is introducing the following temporary special measures:

    • Extension of the maximum possible duration of an agreement from 38 weeks to 76 weeks;
    • Mandatory cooling off period has been waived for employers who have already used the Work-Sharing program so that eligible employers may immediately enter into a new agreement;
    • Reduce the previous requirements for a Recovery Plan to a single line of text in the application form;
    • Reduce the requirement and expand eligibility to employers affected by accepting business who have been in business for only 1 year rather than 2, and eliminate the burden of having to provide sales/production figures at the same time; and
    • Expand eligibility for staff who are essential to recovery, Government Business Enterprises (GBEs) and non-for-profit organization employers.

    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, 2020) such that they have no work 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.

    While there are specific rules relating to statutorily protected leaves of absence (including relating to benefit continuation), 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) or Canada Emergency Response Benefit (CERB). Note that final approval of any application for these programs with Employment and Social Development Canada/Service 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”, however, there is currently no legal obligation to do so.

    Finally, it is worth noting that just because a company/organization is deemed non-essential does not mean that it must stop doing business. Rather, many non-essential businesses have found ways to continue to function while complying with COVID-19 requirements.

    This usually takes the form of remote working arrangements and replacing in-person interactions (whether with colleagues or customers/clients) with virtual options.

    It is accordingly conceivable that an employer may be able to offer continued employment through an adjustment of work arrangements. If this is the case, then employees may find that they are continuing to receive either full wages or, alternatively, are offered reduced hours.

    While some regions in the Province of Ontario will be moving towards Stage 2 of reopening the province as of Friday, June 12, 2020, it is important to stay up to date as to whether you can begin working again in the near future.

    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.

    Where an employee’s workplace has been deemed essential and the employer has implemented reasonable safety precautions to reduce the risk of contracting COVID-19, the employee could face disciplinary action if they decide not to show up to work. It is important to note, however, that due to the current measures put in place by federal and provincial governments, more flexibility may be given to those refusing to work due to COVID-19 concerns.

    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 businesses can re-open as provinces gradually re-open. These lists are important because they determine which businesses are permitted to open at what time during the COVID-19 crisis.

    The Government of Ontario indicated on May 19, 2020, that it started the first stage of its reopening plan which includes opening businesses that can immediately meet or modify operations to meet public health guidance and occupational health and safety requirements.

    COVID-19 is however rapidly advancing and governments across the country are periodically reviewing the effectiveness of the measures being implemented and it is possible that we may see continued revisions to the list of businesses that can reopen alongside essential businesses.

    While some regions of the Province of Ontario begin Stage 2 of reopening the province, employees should ensure that they are up to date with respect to the list of essential businesses and those that have been given the go-ahead to reopen, and how it may impact them, including with respect to their employment and potentially being laid off, wrongfully dismissed 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 lawyersSultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I've been laid off. How will this be classified on my Record of Employment to ensure I am entitled to EI?

    Due to circumstances relating to COVID-19, many employers have made the difficult decision to temporarily layoff their employees, until there is more clarity around the circumstances or until we resume our daily activities.

    When an employee is laid off or terminated, employers are required to submit a Record of Employment (“ROE”) to Service Canada. The ROE directs Service Canada on whether an employee is entitled to receive Employment Insurance (“EI”). When employers issue an ROE to Service Canada, they must code it appropriately. The code provided on the ROE also tells Service Canada whether the employee is entitled to EI (i.e. if the employee was terminated for cause, they will not be entitled to EI).

    The following are the codes employers have the choice of issuing on an ROE:

    • A – Work Shortage/End of Contract or Season
    • B – Strike or lockout
    • D – Illness or injury
    • E – Quit
    • F – Maternity
    • G – Retirement
    • H – Work Sharing
    • J – Apprentice training
    • K – Other
    • M – Dismissal
    • N – Leave of absence
    • P – Parental
    • Z – Compassionate care/Family caregiver

    Based on these codes, if an employer lays off an employee due to business slowdowns as a result of COVID-19, the most appropriate code to issue on the ROE would be code A – Work Shortage. It is important to note that layoffs and shortage of work are classified under the same code. If an employer codes the ROE appropriately, this will ensure that the laid-off employee will be entitled to receive EI benefits.

    If you have been recently laid off and have questions relating to your record of employment or otherwise, or if you have been terminated and want to know about your rights and entitlements, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I have been temporarily laid off, but I was never told that I could be laid off and my contract makes no mention of layoff. What can I do?

    Employers in Canada do not have an unlimited right to lay off their employees.

    The biggest reason for this is Canadian courts believe employees should be provided with income support to find another job. Layoffs do not provide this. Rather, layoffs allow employers to suspend an employee’s work without any income support.

    Instead, the law has consistently stated that layoffs should only be used in limited circumstances, such as where an employee’s employment contract has specifically addressed this possibility.

    By contrast, termination of employment triggers a wide range of employer obligations, including pay relating to employment standards and, potentially, common law notice payments (which could be months of financial support), intended to financially support the employee until they find other employment.

    For this reason, where it is unclear whether an employee has agreed to be laid off (for example, where an employment contract does not address layoffs), and, despite this, an employer proceeds to layoff the employee, the employee may have a claim for constructive dismissal on the basis that he or she was laid off without an agreement in his or her contract allowing for this.

    If an employer violates a term of an employee’s contract, the employee may be successful in claiming that they have been constructively dismissed (and therefore that they should be provided with all the payments associated with termination).

    Specifically, constructive dismissal occurs when the unilateral action of an employer fundamentally alters an essential term of an employee’s contract such that a reasonable person would conclude that the employer no longer intends to be bound by the terms of the contract. Constructive dismissal does not, however, occur where the employee accepts the change(s) or does not make it known to the employer that he or she does not agree with the change.

    Employees who are successful in making a constructive dismissal claim would be entitled to damages as if their employment was terminated.

    If you have been laid off, had your employment terminated and/or want to understand your employment rights please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • If I agree to a temporary layoff during the COVID-19 pandemic, does that mean my employer can lay me off in the future?

    It is possible for you to agree to a temporary layoff, even if it does not form a part of your employment contract.

    To be legal, if an employee agrees to be temporarily laid off for a specific reason, such as COVID-19, this agreement should be clear and, preferably, in writing. The employee, however, should make it clear that they are agreeing to a layoff not as a permanent term of their employment, but instead in response to a specific and/or extraordinary situation.

    By putting these proper protections in place (i.e. a written agreement), an employee will be in a better position to refuse another layoff (i.e. after we pass the COVID-19 period) and, instead, insist that the employer should compensate them in the event of any stoppage of work. Specifically, they will be in a stronger position to claim all payments relating to termination of employment including employment standards payments and, depending on the terms of their employment contract, common law payments (which can be equal to several months/years of economic support).

    If you have been laid off, had your employment terminated and/or want to understand your employment rights please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Are temporary foreign workers required to self-isolate immediately upon landing in Canada, or are they permitted to travel to their final destination in Canada before self-isolating?

    Upon arrival in Canada, all travellers, including temporary foreign workers, will be screened for COVID-19 symptoms. If they are deemed to not have any symptoms consistent with COVID-19 and otherwise meet immigration entry requirements, they will be permitted to travel onwards to their final destination (whether this is via a domestic flight or otherwise). Subject to some specific exceptions (i.e. essential workers) they will be required to self-isolate for a minimum of fourteen (14) days.

    If however, the immigration/health officer determines that an individual has any symptoms consistent with COVID-19 upon arrival, depending on the severity of their condition, they may be placed in quarantine at the point of entry or, alternatively, will be sent to a local hospital.

    Once they have recovered, their admissibility to Canada will be assessed again and, subject to approval by the reviewing immigration/health officer for health and immigration matters, they will be permitted to travel to their final destination.

    If you have any questions relating to your employment during the COVID-19 era or related immigration matters, please contact Toronto immigration and employment lawyers, Sultan Lawyers at (416) 214-5111 or via email at mlahert@sultanlawyers.com.

  • What should I do if an employee comes to work when they have been instructed to self-isolate?

    It is vital for employers to take immediate action and ensure that the employee is safely escorted out of the office/workplace. To keep other employees safe, it is important to confirm where the employee had been present in the office and whether the employee came into contact with any other workers during their time in the office or workplace.

    Employers should also take appropriate measures to clean and sanitize the workplace, including any areas where the employee was present in the office.

    Further, if the employee encountered any other workers, employers should take initiative and advise workers that may have been exposed to COVID-19, to go home and self-isolate.

    If you are an employer and have an employee that refuses to self-isolate and you are looking for legal advice, or if you have any questions relating to your employees and COVID-19, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Do I qualify for CERB if I have two jobs?

    To be eligible to apply for CERB, individuals must demonstrate that they have stopped working for a reason related to COVID-19. Reasons can specifically include the following:

    • An individual lost their job;
    • An individual is in quarantine or sick because of COVID-19;
    • An individual is taking care of others because they are in quarantine or sick because of COVID-19; and/or
    • An individual is taking care of children or other dependants because their care facility is closed due to COVID-19.

    Setting this aside, the federal government has clarified that an individual can receive an income of up to $1000 per month and still be eligible for CERB. This includes employment or self-employment income. Therefore, as an example, if an individual has a part-time job that pays them about $900 a month, and they have been laid off from their full-time job, this individual will still qualify to receive CERB.

    If you have any questions relating to your eligibility for CERB, or any questions relating to your employment in the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can employers close their business due to safety concerns related to COVID-19?

    As per Ontario’s Occupational Health and Safety Act, employers have an obligation to ensure they are providing a safe working environment for their employees. Therefore, if an employer believes that their business has been compromised with respect to maintaining a safe working environment for their employees, an employer may close their business until the safety concerns are addressed.

    Whether an employer is obligated to provide compensation to their employees during this time will depend on a variety of factors, such as applicable employment law legislation and the language of existing employment contracts.

    If you are an employer and want legal advice on the obligation to your employees in the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • As an employer, is it possible to avoid laying off my employees due to the negative impacts on my business in relation to COVID-19?

    The federal government has introduced the Canada Emergency Wage Subsidy (“CEWS”). Eligible employers may receive a subsidy of up to 75% of their employees’ wages for up to twelve (12) weeks. The CEWS was implemented to enable employers to keep their employees on the payroll while contributing to a smoother transition to post-COVID-19 operations.

    There are a number of requirements that must be met in order to be eligible for CEWS including demonstrating a sufficient loss of revenue. Employers must be able to demonstrate that each employee is entitled to the subsidy and that they meet CRA payroll requirements.

    Eligible employers must specifically demonstrate that they have met the requirements of an “eligible revenue reduction”, which can be calculated by comparing the eligible revenue (i.e. reduced revenue) with their baseline revenue. The federal government has outlined that your baseline revenue is:

    • The revenue earned in the corresponding month in 2019; or
    • The average of the revenue earned in January and February 2020.

    Specifically, employers will need to demonstrate a decrease in revenue of 15% or more for March 2020 and 30% or more for April 2020 and May 2020.

    If you are an employer and you are looking to determine avenues to consider prior to layoffs or terminations, or if you have any other employment-related questions amidst the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • My employment has been terminated in the middle of the COVID-19 pandemic. Do I still need to keep looking for work to be entitled to a full termination package?

    Yes.

    Employees who have had their employment terminated have a duty to make efforts to find another job, and thereby reduce their “damages”.

    These efforts are measured on the standard of “reasonableness”. This means that employees are expected to try to find another job, even in a less than ideal labour market.

    Having said this, employees are not expected to make limitless efforts, nor are they expected to accept employment that is not comparable to their previous role. Instead, an employee who has had their employment terminated are expected to do what they can to find alternative, comparable employment. We also recommend keeping a record of these efforts in case this becomes a barrier in reaching a settlement with your former employer.

    If you have had your employment terminated and have concerns about your duty to mitigate, or you feel you may have been wrongfully dismissed in the COVID-19 era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I have been re-called to work. Can I refuse to return?

    Yes.

    An employer cannot force an employee to return to work.

    However, if you have been re-called and refuse to return to work because of concerns unrelated to your health and safety, or in relation to a job-protected leave, your employer may treat your refusal as a resignation. Similarly, if you refuse to return for health and safety-related reasons and the Ministry of Labour deems the workplace safe, your employer may have the right to treat your refusal as a resignation.

    This distinction is important because employees who are deemed to have resigned are not be entitled to any termination or severance pay and will likely not have access to Employment Insurance benefits.

    If you have been re-called to work and have any concerns, or your employer has treated your refusal to return as a resignation of your employment, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I have been temporarily laid off. Am I entitled to receive payment for my accrued but unused vacation?

    No.

    When an employee is temporarily laid off, the employment relationship remains intact and continues throughout the layoff period. Given this, employers do not have to pay their employees for any accrued vacation time or provide any sort of compensation.

    If you have been temporarily laid off and want to better understand your rights, or are concerned that your layoff may trigger a termination of your employment, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can an employee request vacation during the temporary layoff period?

    Yes.

    An employee may request to take vacation time during a temporary layoff.  An employee that requests vacation time is entitled to be paid their full remuneration throughout the vacation period. Employers may, however, refuse the request if they do not have the ability to pay the employee for their vacation period.

    If you have been temporarily laid off in the COVID-19 era and have been denied vacation, or if you are an employer and your employees have approached you about using vacation time while on a temporary layoff, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • My employee has tested positive for COVID-19. As an employer, am I required to notify any government authorities?

    Pursuant to Ontario’s Occupational Health and Safety Act (“OHSA”), an employer has reporting obligations when a worker is exposed to the COVID-19 virus in the workplace. An employer specifically must do the following:

    • Inform the Ministry of Labour in writing within four (4) days of being advised that an employee has tested positive for the COVID-19 virus;
    • Notify the Workplace Safety and Insurance Board (“WSIB”) that an employee has tested positive for the COVID-19 virus;
    • Notify the workplace’s Joint Health and Safety Committee; and
    • Notify the trade union (if applicable).

    If your employee has tested positive for COVID-19 and you wish to better understand your legal obligations, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I contracted the COVID-19 virus at work. Can I sue my employer?

    Generally, no.

    Where an employee falls ill at work with the COVID-19 virus, in most cases the employee will not be able to sue their employer.

    This is because workers’ compensation legislation, such as the Workplace Safety and Insurance Act, 1997 (the “Act”) in Ontario, provides for a no-fault compensation plan for workers who are injured or contract an illness in the workplace.

    For example, employees in Ontario that contract COVID-19 while at work may file a claim with the Workplace Safety and Insurance Board (“WSIB”) to collect compensation benefits during their leave.

    The legislation essentially acts as a bar to employees who wish to bring legal action against their employer.

    Despite this, there may be circumstances in which an employee can bring a claim against their employer, such as where the employer was negligent in its conduct.

    If you have sustained a work-related injury or illness, including in relation to the COVID-19 virus, and you want to better understand the legal remedies available to you, or if you require assistance in filing a claim, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer provide me with a supplement to my Employment Insurance (“EI”) benefits during the COVID-19 pandemic?

    Yes.

    The Government of Canada is allowing employers to register Supplemental Unemployment Benefit (“SUB”) plans with Service Canada that would allow them to top-up EI benefits for laid-off employees during the COVID-19 pandemic.

    While employers are permitted to top-up employees’ EI benefits, they are not permitted to top-up the Canada Emergency Response Benefit (“CERB”).

    Employers that wish to provide a top-up must submit a SUB plan to Service Canada prior to its effective date and must provide written notice of any changes to the plan within thirty (30) days of the changes coming into effect.

    If you have been temporarily laid-off or fired and want clarity regarding the government supports available, or feel that you may have been wrongfully terminated, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • It has been 13 weeks since my temporary layoff and I have not been recalled. Has my employment been terminated?

    In most cases, thirteen (13) weeks is the maximum allowable duration for a temporary layoff under the Ontario’s Employment Standards Act (“ESA”). Absent a recall at the end of the thirteen (13) week period, an employee on a temporary layoff will be deemed to have their employment terminated, triggering an employee’s entitlement to termination pay and severance pay (if applicable).

    This rule changed on May 29, 2020, following the introduction of a new regulation.

    Under the new regulation, employees are automatically deemed to be on Infectious Disease Emergency Leave at any time during the “COVID-19 period” when they do not perform their employment duties due to their hours being temporarily reduced or eliminated.

    This has effectively stopped the clock and removed the deadline for employers to recall employees for the duration of the “COVID-19 period”.

    This applies retroactively to changes implemented after March 1, 2020.

    If you have not been recalled to work and would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What is Infectious Disease Emergency Leave?

    Infectious Disease Emergency Leave is an unpaid, job-protected emergency leave for employees during the COVID-19 period. Unlike other leaves under the ESA, there are no maximum “leave” days.

    Under the legislative change, employees are automatically deemed to be on infectious leave if:

    • Their hours have been reduced due to a COVID-19 slowdown
    • Their hours have been cut completely due to a COVID-19 slowdown
    • They were laid off from their employment on or after March 1, 2020

    If you would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • How long is the COVID-19 period?

    Since the Infectious Disease Emergency Leave regulation applies retroactively, the COVID-19 period is considered in effect from March 1, 2020, and will end six weeks after Ontario’s declared emergency ends.

    The Government recently extended the current declared emergency until July 15, meaning the regulation will be operative until at least August 26, 2020.

    An extension of the state of emergency is possible, and this would automatically extend the COVID-19 period.

    If you would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does my employer have to continue my benefits while I am on Infectious Disease Emergency Leave?

    Unless benefits were discontinued prior to May 29, 2020, employees on Infectious Disease Emergency Leave must continue participating in benefit plans unless the employee elects in writing not to do so.

    Employers who did not continue their employees’ participation in a benefits plan when their employees were laid off prior to May 29, 2020, do not have to re-instate those benefits.

    If you would like to understand your benefit entitlement or would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does my employer have to provide me with notice before placing me on Infectious Disease Emergency Leave?

    Under the new regulation, employees are automatically deemed to be on leave at any time that they are laid off or have their hours temporarily reduced or eliminated for reasons related to COVID-19.

    Employers are not required to provide notice to employees when they are deemed to be on leave under this regulation. Employees do not need to inform their employers of an intention to take this leave if the reasons are related to being laid off or a reduction of hours of work.

    Employees should notify their employers if they need to go on this leave for the following reasons:

    • They are under medical investigation, supervision, or treatment for COVID-19
    • They are in isolation or in quarantine in accordance with public health direction or information
    • They need to care for a family member who is sick
    • They need to provide care to a person for a reason related to COVID-19 such as a daycare closure
    • They are unable to return to Ontario because of travel restrictions

    An employee will also be entitled to Infectious Emergency Leave for the reasons above.

    If you believe you may need to remain off work following a recall for reasons related to the above or otherwise or would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Am I entitled to be recalled to my position at the end of the COVID-19 period?

    It is expected that employers will recall their employees by the end of the COVID-19 period. However, after the COVID-19 period, the regular rules regarding layoff under the ESA will apply. This means that an employer may place the employee on a temporary layoff in accordance with the ESA at the end of the COVID-19 period.

    It is important to remember that not every employer is able to temporarily layoff their employees, as layoffs are generally speaking aimed at businesses that are cyclical in nature or where an employee and employer agree to layoffs as a condition of their employment.

    If you have questions regarding layoffs, a recall, a wrongful dismissal or a constructive dismissal, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employment be terminated while I am on Infectious Disease Emergency Leave?

    Employees that are deemed to be on Infectious Disease Emergency Leave are on a job-protected leave. This means that employers cannot terminate the employment of employees on such a leave unless the termination is solely for reasons unrelated to the leave.

    Employees on Infectious Disease Emergency Leave have a right to return to their job, or a comparable job at the conclusion of the leave.

    If you have been terminated while on a job-protected leave and would like to understand the legal remedies available to you, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does this regulation impact a constructive dismissal claim?

    Typically, a change in hours or a layoff may entitle an employee to claim constructive dismissal and their rights to termination and severance pay (if applicable). The new regulation removes the right to claim constructive dismissal under the ESA.

    However, a constructive dismissal claim can still go forward under the common law.

    If you believe you may have been constructively dismissed or would like to review your options in relation to a constructive dismissal during the COVID-19 era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Is a doctor’s note required for Infectious Disease Emergency Leave?

    An employee will not be required to provide a medical note if they need to take Infectious Disease Emergency Leave.

    In mid-March, the Ontario government introduced legislation that waived requirements for doctor’s notes.

    That being said, a balance is still required. An employer may seek a doctor’s note confirming that it is safe for an employee to return to the workplace after testing positive for COVID-19.

    If you have questions regarding the Infectious Disease Emergency Leave, or if your employer is insisting that you provide medical documentation, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.


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See all of our posts and updates regarding the COVID-19 Virus below

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