COVID-19 and the workplace: Answers to common Ontario employment questions
Please note: the situation with COVID-19 is continuing to rapidly develop. In the coming days and weeks, it is likely that all levels of government may introduce additional measures that could impact employee rights/obligations. We will look to update this page accordingly. If you have specific questions about your workplace entitlements, please contact an employment lawyer directly.
[Last Updated: July 6, 2020]
With continuing uncertainty around the extent and duration of the coronavirus (COVID-19) pandemic, Ontario workers are concerned and want to better understand their workplace rights and protections.
This article answers some of the common questions we have been receiving from Ontario employees.
Q: Do I have to go to work if I have concerns about COVID-19 in my workplace?
A: That will depend on the nature of the concern, such as whether you have reasonable grounds to believe that by attending at work you will come into direct contact with an individual infected with COVID-19. In any case, your first step should be to raise any concerns you have with your immediate supervisor and explore what, if any, options exist to limit risk of exposure.
As the pandemic has progressed, many employers have opted to have employees work from home. For workers whose job requires attendance in person, employers should be taking reasonable preventative measures (including increased disinfection, limiting unnecessary physical contact, and following local laws regarding usage of masks) and communicating these changes clearly to staff.
In extreme cases, where there is an immediate risk to personal safety (or the safety of others), employees can refuse to work and call upon relevant protections in the Occupational Health and Safety Act. To learn more about the scope of such work refusals, click here.
In March 2020, Ontario ordered the shutdown of all non-essential businesses to prevent further spread of COVID-19. Since then, the province has developed a three-staged program to gradually re-open the economy. As of July 5, 2020, Ontario is in Stage 2 (Restart).
For a full list of businesses allowed to operate in Stage 2, reference this current government overview.
Q: Can my employer discipline/dismiss me if I refuse to work as a result of concerns about COVID-19 in the workplace?
A: Employees are generally required to follow the directive of their managers and supervisors. Failing to do so (such as by not reporting to work) can be grounds for discipline or dismissal. That said, each situation will turn on its own facts. If an employee refuses work due to serious and immediate personal safety concerns, the Occupational Health and Safety Act protects against discipline or discharge by the employer.
Likewise, if an employee is disciplined for arriving late due to added childcare complications stemming from school/daycare closures, he/she may be protected by the Ontario Human Rights Code (on the protected ground of family status discrimination).
On March 19, 2020, the Ontario Legislature passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. This new legislation provides job protected unpaid leave if an employee is unable to work for the following reasons:
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 day-care closure; or
The employee is prevented from returning to Ontario because of travel restrictions.
For federally-regulated employees, the Government of Canada has amended the Canada Labour Code to provide for a new “Leave Related to COVID-19”. This is a job protected unpaid leave for a period of up to 16 weeks that covers workers “unable or unavailable to work for reasons related to the coronavirus disease 2019 (COVID-19)”.
If you find yourself subject to discipline or dismissal related to COVID-19, the best course of action is to speak with an employment lawyer to discuss your specific case.
Q: What obligations does my employer have to me during the COVID-19 pandemic?
A: Employers have a general duty to take “every precaution reasonable in the circumstances” to protect worker health. This includes an obligation to “provide information, instruction and supervision” of employees in such a manner as to limit safety risks. In the context of the COVID-19 pandemic, these employer duties take on new meaning.
At a minimum, every employer in Ontario should currently be assessing risk, keeping updated on the latest public health guidance from the government and communicating to workers what actions are being taken to address risk of infection.
On April 27, 2020, the Ontario Government released 61 sector-specific health and safety guidelines to help employers resume on-site operations as pandemic restrictions are lifted. All employers should carefully review these recommendations and implement relevant controls where necessary.
Q: My children’s school/daycare is closed (or operating on a reduced schedule), do I still have to go to work if there is no one else to take care of my children during the day?
A: Employers are obligated to provide reasonable workplace accommodation to workers who bear direct care-giving obligations, such as for children out of school as a result of a government-ordered shutdown.
Employees should discuss any changed child-care obligations with their supervisors as soon as these become known. Keep in mind, however, that workers are not entitled to their preferred accommodation, rather the law requires reasonable accommodation up to the point of undue hardship. For example, this might mean that an employee’s request for paid time off from work is denied, but instead they are offered the option to work remotely and given added flexibility while on duty to address any childcare concerns that arise during the day.
Additionally, as of March 19, 2020 (and retroactive to January 25, 2020) Ontario has a new “Infectious Disease Emergency Leave”. This new provision provides a job protected unpaid leave to cover situations where workers need to give care to a person for a reason related to COVID-19 (such as a school or day-care closure). Infectious Disease Emergency Leave arguably goes further than existing human rights protections and provides a useful tool for parents in Ontario trying to juggle childcare challenges with existing work obligations.
For federally-regulated employees, a new unpaid “Leave Related to COVID-19” may provide assistance for those unable to work due to childcare obligations. This is a a job protected leave for a period of up to 16 weeks for those “unable or unavailable to work for reasons related to the coronavirus disease 2019 (COVID-19)”.
On March 25, 2020, the provincial government also announced it will offer a one-time payment to parents of children who are affected by school or daycare closures. Parents are eligible to receive either $200 or $250 per child under twelve years of age. The higher payment will be issued for children considered to have special needs. Eligible parents are required to apply through an online application portal which can be accessed here.
Both employers and employees should try to be flexible given the current public health crisis. There may be a variety of reasonable accommodations available that will vary depending on the particular workplace.
Q: Can my employer lay me off or fire me due to the COVID-19 outbreak?
A: Your employer cannot lay you off or dismiss you because you have, or are perceived to have, COVID-19. The Ontario Human Rights Commission has confirmed that such actions are considered discriminatory, and contrary to the Ontario Human Rights Code.
Employers are permitted to dismiss staff where economic circumstances dictate. In such circumstances, your employer should inform you of this decision in writing and comply with severance obligations.
Temporary unpaid layoffs from work can be more complicated to navigate. While Ontario employment legislation permits employers to institute temporary unpaid layoffs, absent a contractual provision permitting the layoff, this may be viewed by the courts as a breach of contract triggering an employer’s obligation to pay out severance.
There are important exceptions to this rule. If you work in an industry where temporary unpaid layoffs are the norm (e.g. the construction industry), there will be no breach of contract. Moreover, given the unprecedented scale of the present outbreak (and a declared state of emergency in Ontario), it is possible courts may exercise leniency (in these unusual circumstances) and permit an unpaid layoff absent a contractual clause authorizing the same. As such, before making any decision in response to a temporary layoff, work reduction or request for wage deferral, Ontario employees are encouraged to discuss the matter with an experienced employment lawyer.
Note: On May 29, 2020, Ontario created special rules regarding temporary layoffs and dismissals that apply during the COVID-19 pandemic. For a detailed review of these new measures, read our recent blog summary.
Q: Does my employer have to pay me if I am sick and unable to work?
A: No, your employer is not obligated to continue paying you while you are away due to illness.
Many employers do, however, offer paid sick leave (or benefits coverage through a third-party short-term disability plan). As such, if you are unable to work, you should inquire with your employer about any income replacement available to you.
Given the unprecedented scale of the present pandemic, we are also encouraging employees and employers (where there is no paid leave plan in place) to explore other options that could help bridge the gap. For example, employers may consider allowing staff to use accumulated paid vacation time to cover their absence (or provide an advance on this entitlement, where possible).
Q: What types of income support are available due to the COVID-19 pandemic?
A: If your employer does not provide sick leave coverage (or some other form of paid leave), you may be entitled to receive Employment Insurance (“EI”) Sickness Benefits. These provide up to fifteen (15) weeks of income replacement and are available to employees who:
Experience at least a 40% reduction in “normal weekly earnings” due to “illness, injury or quarantine” and;
Have accumulated sufficient insurable hours.
On March 11, 2020, the federal government announced it would waive the one-week waiting period for EI Sickness Benefits for new claimants who are quarantined and will make these applications a priority for processing. A dedicated toll-free telephone number has been created to support inquiries about these types of benefits: 1-833-381-2725.
On March 18, 2020, the federal government announced, as part of its $82 billion aid package, two new paid benefits (Emergency Care Benefit and Emergency Support Benefit). A week later, the government elected to replace these programs with “a simpler and more accessible combination” of the two: the Canada Emergency Response Benefit (“CERB”).
CERB provides eligible workers with $500 per week as a taxable benefit for up to 24 weeks. Workers can apply for CERB online through the “CRA My Account” portal or via telephone by calling 1-800-959-2019.
CERB coverage 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.
Workers in receipt of CERB are currently allowed to earn up to $1000 per month without losing access to this income support.
In addition to the EI Sickness Benefits and CERB, the federal and provincial governments have also announced the following programs to assist Ontario employees and employers during the pandemic:
Work-Sharing Program: Eligible employers can (for a period of up to 76 weeks) institute a program to have certain staff reduce their normal working hours. This program is designed to avoid layoffs. Affected staff must agree to the reduced work schedule and will be eligible to receive EI benefits as income support.
Canada Emergency Wage Subsidy (CEWS): Available for individuals, taxable corporations, partnerships, non‑profits and registered charities. CEWS provides a 75% wage subsidy to eligible employers for up to 12 weeks, covering the period from March 15 to June 6, 2020. To qualify for CEWS, an employer must experience a drop in revenue of at least 15% in March 2020 and at least 30% in subsequent months. A flexible definition of revenue has been adopted to provide program accessibility for non-profits and charities who often do not have “revenue” in the traditional business sense.
On May 15th, it was announced that CEWS will be extended to run for a 24-week period (from March 15 to August 29, 2020). Full eligibility details for the CEWS extension (June 7 to August 29) have not yet been made public.
Special Benefits for Childcare and Seniors: The federal government has created special support programs for the youngest and oldest Canadians. This includes an increase to the Child Care Benefit by $300 per child in the 2019-2020 benefit year. Seniors eligible for Old Age Security will receive a one-time tax free payment of $300. An additional $200 will be payable to seniors qualified for the Guaranteed Income Supplement.
Temporary Pandemic Pay Program: The Ontario government has mandated a temporary $4.00 per hour raise for certain essential workers. Additional lump sum payments of $250 per month will be available for eligible employees who work more than 100 hours per month. This program will run from April 24 to August 13, 2020 and could result in a pay increase of up to $3,560 per worker (for a qualifying employee working 40 hours per week).
Canada Emergency Student Benefit (CESB): This benefit is intended to provide income support to students who cannot find employment due to the pandemic and would not otherwise qualify for EI or CERB. For eligible students, CESB will provide $1,250 per month (or $2,000 for students with disabilities or dependents). Benefits will be available for the period of May to August 2020.
Canada Emergency Commercial Rent Assistance (CECRA): CECRA provides forgivable loans to commercial landlords with the goal of lowering rent payments by at least 75 percent for small businesses for the period of April to July 2020. To qualify for CECRA aid, a small business must pay less than $50,000 per month in rent and have experienced a 70 percent loss of revenue (or more) as a result of the pandemic.
Tax Relief: Ontario employees, as they look to plan their finances, should also be aware that:
The 2019 tax filing deadline for individuals has been extended to June 1, 2020; and
Individuals and businesses will be permitted to defer the payment of any income tax installments (that become due and owing between March 18 and September 2020) without interest or penalties being applied to outstanding amounts during this period.
COVID-19 Resources for Ontario Employees:
Government of Ontario: Sector-Specific Pandemic Health and Safety Guidelines
Public Health Agency of Canada: Coronavirus Information Page
Government of Ontario: Employer Workplace Safety Plan Template
Government of Canada: Guide to Finding COVID-19 Financial Help
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.
