Responding to COVID-19 in the Workplace: FAQs

Last Updated: March 26, 2020

These are difficult and unsettling times. The landscape is changing every day and for employees, employers, senior management, officers and directors it is vital to make reasonable, measured, and properly informed choices. The lawyers of Mathers McHenry & Co. are working to stay on top of legal and other developments as they happen and are available to answer your questions about managing Covid-19 in your workplace. What follows here is a series of FAQs designed to provide you some quick answers to key questions. The information provided here and via our website is not legal advice. The lawyers of Mathers McHenry & Co. are available to assist you if and if you have any questions about your rights or responsibilities in the workplace as the COVID-19 pandemic continues, please reach out.

 

Question 1: Can an employer lay off an employee?

Maybe. The Employment Standards Act, allows temporary layoffs for up to 13 weeks (or more if payments or benefits are being paid to the employee), and the Canada Labour Code allows temporary layoffs for up to three months (or more if payments or benefits are being paid to the employee). However, if the employment agreement does not explicitly allow lay offs doing so may be a breach of your employment agreement resulting in a constructive dismissal. That is the current state of the common law, but it is entirely possible that a temporary lay off in these circumstances will not trigger an end of the employment relationship – before you take drastic steps, get advice!

Question 2: What if the employee agrees to a layoff?

If an employee agrees to a temporary layoff, this will likely be a lawful layoff even if the employment agreement does not provide for temporary layoffs. An employee who agrees to a temporary layoff will likely not be able to claim constructive dismissal.

Question 3: If an employee agrees to a layoff now, can the employer rely on that agreement to lay off the employee again in the future?

Maybe. Best practice for employees is to make clear that any agreement to a temporary layoff in response to COVID-19 is a one-time agreement.

Question 4: Can an employer terminate an employee who is on a Covid-19 related “job-protected” leave?

Yes, but an employee cannot be terminated because of the leave. The employee’s leave cannot factor at all into the decision to terminate the employment.

Question 5: Can an employer tell a symptomatic employee to stay home?

Yes. Employers have an obligation to ensure the safety of the workplace and may be in breach of that obligation, given the current pandemic, by allowing a symptomatic person to remain in the workplace. Most recent medical directives require symptomatic individuals to remain in self-isolation for a period of 14 days.

Question 6: If an employee is sick or symptomatic, is his/her/their leave paid?

Not generally, unless the employee is relying on paid sick days to which he/she/they is otherwise entitled (e.g. under the employment agreement or employer paid sick leave policy).

Question 7: Can an employee refuse to work because of a general fear of contracting COVID-19 if they leave their home?

Likely not. As of March 25, 2020, essential businesses and workplaces remain open for business and public health directives do not prohibit employees at those essential businesses from reporting for work. Unless there are facts or evidence to support a specific safety concern relating to the workplace, employees have no universal right to refuse to work. Employees and employers should keep up to date on the most recent information and follow public health directions related to COVID-19. If the employer is following current guidelines, it is unlikely – without something more – that an employee will be permitted to refuse work due to safety concerns.

Question 8: What if the employee is concerned about contracting COVID-19 on a public transit commute to work?

Generally, the employer bears no responsibility for and has no domain over the employee’s commute to and from work. Care should be taken in assessing whether employees can work from home, and special consideration should be given to employees whose health is vulnerable or who have familial obligations (disability and family status provisions of the Human Rights Code could have application).

Question 9: Can an employer force employees to use vacation time?

The answer to this question likely depends on the terms of the employment agreement and on past practice. If the employment agreement allows the employer to dictate when time is taken, the employer can insist it be taken now. It is not certain whether employers can do so in this pandemic even if the agreement does not allow them to, so. The most prudent course where possible is to negotiate these issues and obtain agreement.

Question 10: Can an employer top up EI benefits for employees on unpaid leave?

In normal circumstances, a Supplementary Unemployment Benefit Plan (SUBP) is required for an employer to top up EI benefits. Details are not yet available, but the federal government is working on facilitating the registration of such plans to permit employers to top employees up. Stay tuned. This may be a great option for employers who can afford it to assist employees.

Question 11: Is an employee entitled to paid leave if caring for a sick family member?

Not generally, unless the employee is relying on paid personal leave days or is otherwise entitled to such paid leave (e.g. under the employment agreement or employer leave policy).

Question 12: Are employers required to pay benefits and contributions while employee is on leave?

Generally yes.

Question 13: Are employers required to pay for benefits and contributions while employees are laid off?

Generally no. However, temporary layoffs may be extended if the employer continues to pay benefits, contributions and/or other payments to the employee. As a practical matter, if an employer is able, continuing to pay for benefits and contributions may help mitigate against disgruntled employees, thereby possibly protecting against constructive dismissal claims.

Question 14: Are employment contracts frustrated as a result of Covid-19?

This is a fact specific question so a broad answer is not possible. We do not believe at this stage most employment contracts are likely to have been frustrated by Covid-19, but the longer the pandemic continues the greater the likelihood that will occur. As a practical matter, employers who will re-open following the pandemic likely have no reason to resort to arguing a contract has been frustrated. For employers forced to close permanently, we expect this may be argued. Whether frustration has occurred will, again, be fact specific.

Question 15: Do employers have to accommodate employees working from home who have childcare responsibilities?

Yes. Family status accommodation requires some accommodation for childcare, and in this situation it would behoove employers to afford flexibility to those employees working from home with childcare or other familial obligations which cannot, at present, be met with external assistance or providers of care.

Question 16: Do employers have different or heightened obligations vis a vis immunocompromised employees or employees with health conditions which render them vulnerable to Covid-19?

Yes. The duty to accommodate disability is engaged here. Care should be taken to ensure that employees who fall into this category are considered in the development and implementation of any measure with respect to managing Covid-19 at work.