COVID-19 and the workplace: Sick benefits, EI, Accommodation, Lay-offs and everything in between
March 16, 2020 By: Jill Lewis Read Time: 6 minutes
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This blog was updated on March 16th to reflect the ongoing developments of COVID-19.

As COVID-19 hits Ottawa, employees and employers need to understand their rights and obligations. Below we have broken down some commonly asked questions regarding employee and employer rights and obligations.

Listen to Jill Lewis’ March 16th interview on CBC Ottawa Morning as she discusses commonly asked questions surrounding COVID-19 and the workplace.

Am I entitled to compensation if I self-quarantine?

  • No, an employer is not obligated to pay you if you are self-isolating and not working.
  • However, the employer is entitled to explore alternative options with you to see if you can still continue to perform productive work, in which case, you will continue to be paid.
  • If working from home is not an option, you can exhaust your sick days and inquire into your employer’s short-term disability plan (“STD”). If your employer does not have an STD plan, you can apply for Employment Insurance Sick-Leave Benefits.
  • Employers are being asked not to insist that employees provide doctor’s notes in order to avoid overburdening the health care system.

Am I eligible for EI Sick-Leave Benefits and how does it work?

  • You will qualify if you pay EI premiums or if you are self-employed and registered to participate in the EI program.
  • You must have lost at least 40% of your usual weekly pay and worked a minimum of 600 hours in the year before the claim.
  • Normally you need a medical certificate to apply for EI Sick-Leave Benefits, but the government is waiving this note for patients required to go into quarantine by law or by a public-health official. The same may apply for employees asked to self-isolate by their employers when public-health officials recommend it. Please note, this issue regarding required documentation is still evolving.

Once you qualify, the one week waiting period typically applicable for EI Sick-Leave Benefit applications will be waived. You can then receive 55% of your salary, to a maximum of $537 per week, up to 15 weeks.

As an employer, can I force someone to go home?

  • Employers must be careful not to discriminate against an employee due to concerns over COVID-19.
  • If an employer has reasonable concerns that are consistent with the most recent advice from Public Health, it can ask the individual to go home[1].
  • The employer must balance individual employee’s rights with its obligation to maintain a safe and healthy work environment. Therefore, there may be situations where the employer can show objective evidence to treat an employee differently who may have, or perceived to have, COVID-19.
  • If the employer sends an employee home, it must first explore alternative working options (ex. Telework), and if that is not an option, provide all information regarding sick-leave benefits and/or allow the employee to exhaust their accrued personal and/or vacation leave.

Can I force an employee to disclose if they have tested positive for COVID-19?

  • Arguably, yes. An employee’s personal medical information is generally acknowledged as private and confidential. However, an employer is entitled to access sufficient medical information for legitimate purposes. An employer is entitled to the least such information necessary for this purpose. Therefore, the employer is likely entitled to know when/if an employee tests positive in order to keep the rest of their employees safe. However, the employer is not entitled to disclose the name of the individual to other employees.
  • The employer cannot fire an employee who refuses to provide this information, but it can ask for this employee to go home, without pay, until the information has been provided.

What if I need to stay home to care for my children?

  • Employees forced to stay home due to school closure, or to care for a sick family member, are protected under the Human Rights Code based on family status.
  • These employees should be accommodated to the point of undue hardship, which might include staying home, working remotely, or working alternative hours.
  • However, if alternative options are not available, the employer does not have to keep paying the employee. Employers should allow these employees to exhaust their personal and/or vacation leave without limitations.

Can I be laid of/fired due to COVID-19?

  • You cannot be penalized simply for having COVID-19.
  • However, many employers may be forced to lay-off, or terminate employees, due to insufficient work as a result of COVID-19. Your rights during a lay-off will depend on a number of things:

Common Law Principals

  • As a general rule, the employer does not have a common law right to lay-off an employee unless it is provided in the contract (or unless there’s an industry norm of lay-offs). Therefore, an employee could treat a lay-off as a constructive dismissal, in which case they are entitled to a common law notice period. This common law notice period, however, depends on a number of factors such as:
    • Whether the contract provides a termination clause restricting the employee to the Employment Standards Act;
    • Duty to mitigate—if the employer indicates you are coming back at a certain point, this will affect your notice period.

Employment Standards Act—for provincially regulated employees

  • The Employment Standards Act, on the other hand, does provide for temporary lay offs so you would not be entitled to your statutory notice/severance period for the duration of a “temporary lay-off’ as defined by the Act.
  • A “temporary lay-off” is defined as the following:
    • A lay-off of not more than 13 weeks in any period of 20 consecutive weeks;
    • A lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,:
      • The employee continued to receive payments;
      • Employer continued benefit and/or pension plan;
      • Employee received supplementary unemployment benefits;
      • Employee is employed elsewhere during the lay-off;
      • Employer recalls employee within the approved time, or
      • The employer recalls the employee within the time set out in an agreement.
    • If you have been laid off for a period longer than the “temporary lay-off” described above, you are entitled to statutory notice (and possibly statutory severance). You may also be entitled to a common law notice period.

Canada Labour Code—Federally Regulated Employees

  • The Canada Labour Code also has a definition of temporary lay-offs. Certain lay-offs do not constitute terminations of employment such as when:
    • The term of the lay-off is three months or less; or
    • The term of the lay-off is for more than 3 months but not more than 12 months, and the employees maintain recall rights pursuant to a collective agreement;
    • the term of the lay-off is more than 3 months and:
      • employer gives a fixed date of recall at the time of the lay-off or within six months from the date of the lay-off;
      • the employee continues to be paid;
      • employer continues to make payments to employee’s pension plan;
      • employee receives SUB; or
      • employee would be entitled to SUB but is disqualified from receiving them.

Conclusion

  • If you are laid off or terminated, you can apply for EI. The waiting period has been waived but you must have logged at least 600 hours of work.
  • Ultimately, you should speak to an employment lawyer to understand your rights during a lay-off/termination. We are dealing with uncharted territory and therefore how the courts will handle lay-off and terminations will likely differ from the norm. Consulting an employment lawyer is

What if I am afraid that a co-worker may be carrying the disease?

If an employee reasonably believes that the physical condition of the workplace is unsafe to himself/herself, they can refuse to work. This right is found under the Occupational Health and Safety Act.

This process for refusing work has two stages.

Stage one

  • Worker considers work unsafe. If a worker has reason to believe that the physical condition of the workplace or workstation is likely to endanger himself or herself, they may consider the workplace unsafe.
  • Worker must report this refusal to a supervisor or employer;
  • Employer will investigate in the presence of the worker;
  • If the issue is resolved employee goes back to work;
  • If the issues is not resolved or if the employee is not satisfied with the employer’s investigation we go to stage 2

Stage two

  • The employee must have reasonable grounds to believe the workplace is still unsafe;
    • Though there is no definition of “reasonable grounds”, the employee would likely have to demonstrate that there was reason for them to believe they would likely endanger themselves if they continued working.
  • The Ministry of Labour (“MOL”) Inspector gets involved and investigates and provides their findings.

While you are refusing work:

  • Employees under stage one is considered at work and are therefore paid. It is unclear whether the employer must pay the employee during stage two.
  • Employer can offer you other reasonable alternative work ex. Working in another building or perhaps working from home;
  • Your position can temporarily be offered to another worker, but the employer has to disclose to that worker why you refused the job;

Employer cannot discipline a worker for refusing work

  • The employer cannot penalize, dismiss, suspend or threaten an employee who has sought enforcement of their rights under the OHSA

[1] The following advice comes from the Ontario Human Rights Commission website: http://ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-pandemic

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2020 Nelligan O’Brien Payne LLP.

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