Responding to COVID-19 in the Workplace

By: Khrystina McMillan

March 24, 2020 (updated April 2, 2020)

We at Mathers McHenry and Co. know that these are trying and unsettling times for many. With so much happening so fast, it is difficult sift through all the announcements and reports for the information that really matters to you. Below we provide some key information for those facing work disruptions as a result of the COVID-19 pandemic. We will continue to monitor the situation and provide timely updates as new developments arise. If you have any questions about your rights or responsibilities in the workplace as the COVID-19 pandemic continues, or otherwise, please reach out to one of our lawyers. We are ready to assist you with all your workplace issues.

Employers

All employers should help employees make necessary arrangements to work remotely, where possible.

If it is not possible for employees to perform their duties remotely,

  • Ontario’s new amendments to the Employment Standards Act, 2000 entitle Ontario workers to an unpaid leave of absence during the COVID-19 pandemic in certain circumstances, including where:
    • the employee is under medical investigation, supervision or treatment for COVID-19,
    • the employee is acting in accordance with an order under the Health Protection and Promotion Act,
    • the employee is in isolation or quarantine in accordance with public health information or direction,
    • the employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace,
    • the employee needs to provide care to a person for a reason related to COVID-19 such as a school or daycare closure,
    • the employee is prevented from returning to Ontario because of travel restrictions.

It may be unlawful to temporarily lay off employees who are entitled to a leave of absence.

  • Canada’s Bill C-13 amended the Canada Labour Code entitling every employee, on notice to his/her/their employer, to a leave of absence of up to 16 weeks “if the employee is unable or unavailable to work for reasons related to the coronavirus disease 2019”. The new provisions to the Code do not clarify what “reasons related to the coronavirus disease” would entitle an employee to this leave, but the amended provisions provide that employers may require an employee to provide a written declaration in support of the reasons for the leave.
  • And your business remains open and operational, employers should take reasonable precautions to protect the health of employees and prevent the spread of COVID-19 in the workplace. The Government of Canada has published best practices for responding to COVID-19 in the workplace, including (among other measures):
    • increasing awareness about COVID-19 through communication with staff,
    • adjusting policies to reduce social contact such as allowing flexible working hours, staggering work start times, and teleconferencing,
    • ensuring frequent cleaning of shared and high-touch surfaces,
    • increasing the physical distance between desks and workstations (ideally 2 metres),
    • adding a physical barrier (e.g. cubicle or plexiglass window) between workers, and
    • providing access to handwashing areas and place sanitizing dispensers in prominent locations throughout the workplace.

Employers should document the measures taken to respond to COVID-19 and promote employee safety and well-being, and may wish consider codifying your response plan in a formal policy.

  • And are considering imposing temporary layoffs or unpaid leaves of absence, you should seek legal advice before making any such decisions. Careful consideration must be given to any relevant employment contracts as well as employers’ legal obligations in responding to the pandemic.

Employers who have questions about their rights or obligations in responding to the COVID-19 pandemic should seek advice from one of our lawyers prior to making any decisions.

Employers who are facing financial hardship as a result of the COVID-19 response measures, may be able to take advantage of some of the below measures (among others) put in place by the Government of Canada to ease the strain, including:

  • The Business Credit Availability Program (BCAP): The Business Development Bank of Canada (BDC) and Export Development Canada (EDC) will coordinate with private lenders on credit solutions for businesses, with a focus on sectors such as tourism, the airline industry and oil & gas. Businesses seeking support through BCAP should contact the financial institutions with whom they have a pre-existing relationship, so that the financial institutions may assess the client’s financial request and, if necessary, work alongside BDC or EDC to access additional resources the Government has made available under BCAP.
  • Canada Emergency Business Account: On March 27, 2020, Prime Minister Trudeau announced the launch of the Canada Emergency Business Account, through which banks will soon be able to offer to qualifying small and medium sized businesses $40,000 loans guaranteed by the Government of Canada that will be interest-free for one year. Businesses seeking support through the Canada Emergency Business Account should contact their financial institutions. These funds are expected to be available April 6, though some banks are already accepting applications.
  • Temporary Wage Subsidy for Small Businesses: Corporations that are eligible for the small business deduction (generally, Canadian-controlled private corporations with less than $15 million in taxable capital employed in Canada), not-for-profit organizations and charities are eligible for a 10% wage subsidy between March 18 and June 20, up to a maximum of $1,375 per employee and $25,000 per employer. Businesses are able to benefit immediately from this subsidy by reducing their remittances of income tax withheld on employees’ remuneration.
  • Canada Emergency Wage Subsidy: On March 31, 2020, Canada released details of a new Canada Emergency Wage Subsidy. Whereas wage subsidies were previously only available to small businesses (see above), the new and increased wage subsidy is now available to eligible employers, regardless of size, whose revenues have decreased by at least 30% because of COVID-19. The increased wage subsidy will now cover 75% of each employee’ wages for up to 12 weeks, up to a maximum of $847 per week. Employers do not appear to be required to pay the remaining 25% of employee wages, though the program requires employers to make “best efforts” to do so. Employers who do not qualify for the increased Canada Emergency Wage Subsidy may qualify for the previously announced Temporary Wage Subsidy for Small Businesses.
  • EI Work Sharing Program: To help avoid layoffs, the EI Work Sharing Program provides EI benefits to workers who agree to reduce their working hours as a result of developments beyond their employer’s control. Effective March 15, 2020, the Government has extended eligibility for EI Work Sharing from 38 weeks to 76 weeks for businesses affected by the downturn in business due to COVID-19 and for the forestry and steel and aluminum sector.
  • Deferred Income Tax Payments:  Business can defer until after August 31, 2020, without interest or penalties, payment of any income tax amounts that became owing on or after March 19 and before September 2020.

Employees

Employees who are able to work from home, should do so. If you are unable to work remotely,

  • And your place of work is not closed, you may be required to continue to go into work. You may be entitled to ask your employer to take extra precautions to protect against the spread of COVID-19 in your workplace. You should immediately report to your supervisor if you are experiencing symptoms of COVID-19, or have been in contact with someone who has been diagnosed with COVID-19.
  • And are forced to take time off work as a result of the response measures to the COVID-19 pandemic, you may wish to rely on vacation time and paid sick or personal days for financial support.
  • You may be entitled to an unpaid leave of absence under Ontario’s recent amendments to the Employment Standards Act, 2000 or Canada’s amendments to the Canada Labour Code. You should not be required to provide a doctor note or medical certificate to obtain leave, though if you are a federal employee your employer may require a written declaration from you explaining your reasons for the leave.
  • And are provided with a notice of termination or layoff, or are asked to agree to proposed terms of severance or temporary layoff from your employer, you should seek legal advice immediately and before accepting any severance or temporary layoff proposals from your employer.

Ask our lawyers if you are concerned about your employer’s response to COVID-19, including if you are being forced to work in unsafe conditions, are uncertain about the status of your employment and benefits, or have been provided a notice of termination or temporary layoff.

If you find yourself without paid work, you may be able to rely on some of the following measures (among others) put in place by the Government of Canada to ease the financial strain of the response to the COVID-19 pandemic:

  • Employment Insurance (EI): Employees who have worked 600 insurable hours during the year leading up to the date of claim may qualify for EI. Self employed individuals may also qualify if they opted into the program at least one year prior to claim. For most people, the basic rate for calculating EI benefits is 55% of your average insurable weekly earnings, up to a maximum amount of $573 per week. Under normal circumstance, claimants for EI sickness benefits would need to obtain a doctor’s note or medical certificate in order to qualify for EI sickness benefits, and the claim would be subject to a mandatory one-week waiting period. Those requirements have been temporarily waived as part of Canada’s response to the COVID-19 pandemic.
  • Canada Emergency Response Benefit (CERB): Workers who are not eligible for EI and who are facing unemployment may be entitled to receive the new CERB. Bill C-13, which received Royal Assent on March 25, 2020 enacted the Canada Emergency Response Benefit Act which allows workers to apply for a maximum 16-week support payment if (a) they cease working for reasons related to COVID-19 for at least 14 consecutive days within the four week period (between March 15, 2020 and October 3, 2020) in which they apply for the benefit, and (b) they are not receiving income, benefits or allowances. Eligible workers are those who are at least 15 years of age, residents of Canada, who for 2019 or in the 12-month period prior to application had a total income of over $5,000 (subject to amendment by regulation) and who are not receiving benefits under EI. Applications for this benefit must be received on or before December 2, 2020. On March 27, 2020, Prime Minister Trudeau announced that though the CERB is taxable, tax recovery will be deferred – likely in accordance with the income tax payment deferral measure described below.
  • Emergency Care Benefit: Starting in April 2020, eligible workers will be able to apply for the new Emergency Care Benefit providing income support of up to $900 bi-weekly for up to 15 weeks. The new Emergency Care Benefit will be available to: (1) workers, including the self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits; (2) workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent, but do not qualify for EI sickness benefits; and (3) parents with children who require care or supervision due to school or daycare closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.
  • Deferred Income Tax Payments: The Government of Canada has deferred the return filing date for individual tax returns to June 1, 2020. All taxpayers are permitted to defer until August 31, 2020, without interest or penalties, the payment of any income tax amounts that became owing on or after March 19 and before September 2020.

Key COVID-19 Events

On January 22, 2020, the Minister of Health designated the novel coronavirus as a communicable disease under the Health Protection and Promotion Act and the first Ontario case of the new disease was confirmed on January 25, 2020. The number of confirmed cases in Ontario has since grown to over 2,700. The Minister of Health has recommended that anyone who has travelled outside of Canada should self-isolate for 14 days upon return, and that everyone in Ontario practice social distancing, meaning that close contact (within two meters) with people outside your immediate family should be avoided.

On March 17, Ontario declared an emergency under the Emergency Management and Civil Protection Act and ordered the closure of a number of businesses and public venues. On March 30, 2020, Premier Ford announced that the state of emergency will extent until at least April 13, 2020. Ontario also ordered that all organized public events of over fifty people are prohibited. On March 23, 2020, Ontario announced its intention to order the closure of all non-essential businesses effective March 24 at 11:59 p.m. for the following 14 days, subject to possible extension. The list of essential businesses to remain open can be found here.

The Public Health Agency of Canada has recommended that all non-essential travel outside of Canada be avoided. On March 25, 2020, the Honourable Patty Hajdu, Canada’s Minister of Health announced an emergency order under the Quarantine Act, requiring any person entering Canada by land, sea or air to self-isolate for 14 days whether or not they have symptoms. Individuals who provide essential services are exempt, provided they are not exhibiting symptoms, but are still required to practice social isolation.

As a result of these developments, many businesses have had to reduce work, or close their doors entirely. On March 19, 2020 the Government of Ontario passed Bill 186, An Act to amend the Employment Standards Act, 2000, to provide job-protected, but unpaid, leave for employees unable to work because of COVID-19. According to the Ontario Government’s press release, the changes are effective retroactively to January 25, 2020. The Government of Canada has also announced Canada’s COVID-19 Economic Response Plan to provide economic support for business and individuals affected by COVID-19. On March 25, 2020, Bill C-13, An Act respecting certain measures in response to COVID-19 received royal assent. The Bill implements the measures set out in the Economic Response Plan, among other response measures.

Bill C-13 also includes amendments to the Canada Labour Code to suspend, until September 30, 2020, the requirements that employees provide their employers with documentation and/or medical certificates to be entitled to Compassionate Care Leave, Leave Related to Critical Illness and Medical Leave under the Code. The proposed changes would also entitled employees to a leave related to COVID-19, and permit employees to interrupt and/or suspend vacation time or other leaves for a coronavirus disease-related leave.

Back To Top Skip to content