Employment lawyer Daniel Lublin answers some frequently asked questions employees have about how coronavirus affects their jobs.
I don’t feel safe going into the workplace because of COVID-19. Can I stay home?
This depends on whether your presence at the workplace presents a reasonable likelihood that you will become infected with COVID-19.
You have the right to refuse to perform your job if it is likely to endanger you. Whether you face a clear and present danger depends on the circumstances and the type of work you perform. A work refusal is only justified when the situation remains unsafe. If you work in an office and an employee near to you is complaining of symptoms similar to COVID-19, you may be justified in leaving that airspace and, if there is no other alternative, staying home until that threat of a potential infection is removed. You do not have an unlimited right to simply stop working or return home whenever you feel like there could be a risk. It has to be a real risk.
Although you cannot be fired for exercising a COVID-19 work refusal due to a good-faith belief that you may become infected, if you stop working without that good faith and reasonable belief, your wages and job may be placed in jeopardy.
Whether your COVID-19 refusal to work is justifiable will depend on whether it is founded upon recommendations of public-health authorities or founded upon unreasonable fears. Stay informed by following municipal, provincial and federal health recommendations posted on official government websites.
The provincial government also recently announced job-protection legislation to protect the job security of employees away from work because of COVID-19. The precise scope of the legislation is not yet known.
I’m suffering from cold-like symptoms and I feel like I need to stay home at least for 14 days for self-isolation. My employer still wants me to work. Can I be forced to work?
If you do have COVID-19 and your presence at work infects other employees, then both you and your employer can potentially be sued. Both employees and employers have a responsibility to protect other coworkers and the general public.
Although each jurisdiction across Canada is addressing this slightly differently, you cannot be fired if you are sick and unable to work due to COVID-19, including even a presumption that you are sick with the illness, as many people with symptoms are still not receiving tests. Some Provinces have also created protected leaves of absence that define whether and when you have the right to assert a leave of absence due to COVID-19 or the possibility of it.
Speak with the local authorities, follow their guidance, and attempt to get tested. If you are indeed sick with COVID-19, then you must immediately notify your employer. You cannot be required to re-attend the workplace until you are no longer sick and do not pose a threat of spreading the illness to others.
Once you can be more certain that you do not actually have COVID-19, then you can be required to work.
My child’s school is closed. Does my employer have to give me time off so I can care for my child?
Some Provinces have created job-protected leaves of absence for employees who need to stay home and care for children due to school or day-care closures. In these Provinces, you must be provided with the time off, although it is unpaid, and your job must be reinstated upon the end of the leave.
Human-rights laws also require that employers accommodate your child-care needs. Employers must determine whether the nature of your role enables you to perform work from home and, if so, to provide you with remote work. Employers and employees must also work together to determine if there are other arrangements for child care that can be implemented or any other adjustments to your role, such as different hours of work so your spouse or other family member can care for your children while you work, which enables you to perform your regular duties.
If there are no other reasonable options available, then you are entitled to unpaid time off to stay home to watch your children. However, you would be eligible for employment insurance or the CERB. You also cannot be fired if you must stay home to care for your children owing to a school closing.
Can my employer force me to use my vacation time during a business closing?
This depends on the province you work in, but generally your employer can direct when you take your vacation time.
What types of questions can my employer ask me related to COVID-19?
Employers have to ensure that the workplace is safe for employees. They are entitled to ask a number of questions designed to determine if you pose a health and safety risk, such as:
- Are you exhibiting symptoms of COVID-19?
- Were you in close personal contact with anyone who has exhibited symptoms of COVID-19?
- Were you in the same physical vicinity with anyone who is confirmed to have COVID-19 within the past several weeks?
- Have you travelled to an affected area where there was a COVID-19 outbreak?
- Were you in close personal contact with anyone who recently travelled to an area with a COVID-19 outbreak?
Arguably, this list could also include the question “have you travelled outside of Canada at all?”
You cannot be fired if you answer yes to any of these questions.
However, you can be told to immediately leave the workplace and not to return until such time as there is no risk that you will infect the other workers.
Note that you cannot be targeted by your employer and asked certain questions due to your race, place of origin or ethnicity. Human-rights legislation recognizes the importance of balancing people’s rights to non-discrimination with public health and safety, including the need to address evidence-based risks associated with COVID-19. Questions that are founded upon reasonable health and safety concerns consistent with the recommendations of public-health authorities will be permissible. Questions that are founded upon misguided fears and stereotypes may be inappropriate and amount to discrimination.
My employer wants me to sign a waiver/zero liability letter in the event I contract COVID-19 through continuing to work. Is this legal and what rights do I have if I refuse to sign this letter?
You cannot be forced to sign a waiver of legal rights, especially if you are being asked to work in any type of situation that is unsafe or potentially unsafe. You also have the right to refuse to work where it is likely to endanger your health and safety so you cannot be forced to continue to work in an unsafe environment even if you don’t agree to sign the waiver.
There is talk about some employers offering employees additional compensation or benefits to stay at work or to work additional hours or overtime. Subject to the government mandated work stoppages that are occurring in Canada right now, it is possible for employers and employees to agree on additional compensation or benefits for employees who are prepared to continue to work despite the health risks that may exist. But employees cannot be forced or threatened to make these types of deals and they should definitely not sign anything without having it first reviewed by a lawyer.
I am required to work remotely but I do not have a home office or appropriate equipment to do the job remotely. Is my employer required to provide me with these tools and what if they don’t?
Many businesses that are still operational are adapting to the new reality by allowing or encouraging remote work. For those employees given such a choice, it is important to understand that remote work arrangements are neither a right nor a privilege. It is a form of accommodation that employers are providing. To this end, if an employer offers, but does not require, employees the opportunity to work from home, those employees who accept that offer are responsible to have the tools and resources necessary to capably perform the job, such as computers, printers, internet connections and sufficient data plans.
Can I apply for Employment Insurance Sickness Benefits if I self-quarantine without any symptoms?
Employment Insurance sickness benefits are available to employees who are unable to work because of “illness, injury, or quarantine.” Even if you are not yourself sick or injured, you may qualify for sickness benefits if you are quarantined as a result of the COVID-19 outbreak.
A medical certificate is usually required for sickness benefits, but the federal government has waived this requirement for COVID-19 related claims.
For the purposes of a sickness benefits claim, a “quarantine” may be proven to Service Canada by providing a declaration that the quarantine was “imposed on the claimant by a public-health official for the health and safety of the public at large” or “recommended by such an official for the health and safety of the public at large and the claimant was asked by their employer, a medical doctor, a nurse or another similar person in authority to place themselves under quarantine.”
Someone who has recently returned from travel abroad would qualify under this definition of “quarantine” in light of the current self-isolation recommendations from public-health authorities. Similarly, someone who cannot work because of restrictions against gatherings of 50 or more people could fit the definition of “quarantine.”
But there remains some doubt as to whether an entirely asymptomatic person, who has not recently travelled, and who hasn’t been sent home by their employer can qualify for sickness benefits. If the voluntary self-isolation is purely fear-based without any connection to prevailing public-health recommendations, such an employee may not qualify for EI sickness benefits while away from work.
I have not worked enough hours to qualify for EI. Has there been any change in eligibility to cover me?
The Federal Government has not yet announced any change to the basic eligibility rules for regular employment insurance. Employment insurance is available in a number of different circumstances, including if you are laid off, terminated or sick. But workers generally must have first worked at least 600 insurable hours during the 52 weeks prior to the claim for insurance. You should review the Federal Government’s employment insurance website.
Even if you do not qualify for regular benefits under the regular rules, there is another option for you to obtain benefits. The Federal Government just announced the new Canada Emergency Response Benefit. It is available to workers, including self-employed workers, affected by the COVID-19 outbreak who do not otherwise qualify for employment insurance benefits.
I signed a new job contract but was laid off before I had worked any hours or before I started. What are my options?
You should have received a Record of Employment indicating that you were laid off due to a shortage of work. If you worked enough qualified hours prior to the layoff, also taking into account any prior employment you held during the last year, then you should still be able to qualify for regular EI benefits.
If you don’t qualify for EI benefits, you may qualify for the CERB which the federal government announced it is making available to employees affected by the COVID-19 outbreak but who don’t otherwise qualify for EI. The program is essentially a catch-all for workers who are affected by COVID-19 and unable to work or who are no longer receiving an income.
To be eligible, you must have stopped working due to COVID-19 and had employment and/or self-employment income of at least $5000 in 2019 or in the 12 months prior to the date of your application. If you are a student, you may be eligible for the Emergency Student Benefit, which is meant to provide support to students and new graduates who are not eligible for the CERB.
Finally, there may be legal remedies available against the company, depending on the language of the contract you signed. Even if a contract is broken before employment begins, you may be able to claim damages for some lost income while you search for another comparable job.
I am a temporary foreign worker on a study or work visa. Am I eligible for any benefits?
Temporary foreign workers are entitled to claim EI Benefits. EI Benefits are payable to eligible workers for all days in a benefits period where they are “capable of and available for work.” If a work permit expires, EI payments may stop because the worker is no longer capable or available for work.
The CERB is available to workers residing in Canada who are at least 15 years old and who have stopped working because of COVID-19 related reasons. You need a SIN number to apply so if you have a SIN number and fit the remaining eligibility criteria, you should be eligible for the CERB.
Do self-employed individuals or contractors qualify for any financial protection if they are laid off, become sick or are in self-isolation
Absolutely. The Canada Emergency Response Benefit is designed to provide up to $2,000 per month for up to 4 months of income replacement for workers, including self-employed workers and contractors, who face unemployment due to COVID-19, including those who are sick, quarantined, or in directed self-isolation. To be eligible, they must have had income of at least $5,000 in 2019 or in the 12 months prior to the date of application, which includes income paid by way of non-eligible dividends.
Just like employees, contractors in voluntary self-isolation would not be eligible for these benefits.
I am a business owner. My business has come to a standstill and I have no income coming in. What relief am I entitled to?
You will apply for the newly announced Canada Emergency Wage Subsidy (CEWS). This benefit will provide you with a subsidy of 75 per cent of employee salaries up to $847 per employee, per week, for a period of 3 months. To qualify, your revenue must decline by at least 15 per cent from March 15, 2020 to April 11, 2020, and by at least 30 per cent in the following two months, when compared to a baseline revenue. If you own a corporation and are on the payroll, your earnings also qualify for the wage subsidy, assuming that the other preconditions are met.
To qualify for the CEWS you will need to recall your employees back to work. Employees who receive EI or CERB for a period where they are recalled to work will likely be asked to repay these benefits back to the government although the government has not provided specific details on this issue.
You are also expected, if possible, to top up the difference in pay between the CEWS and your employees’ normal wages.
My maternity leave is ending and my employer has just announced layoffs. Will I be able to extend my EI claim?
You likely will not qualify for another EI claim as you need to have a certain amount of eligible hours before making a new claim. However, if you are unable to return to work due to a layoff, I believe you would qualify for the newly announced Canada Emergency Response Benefit which provides income support payments to workers who suffer a loss of income for reasons related to the COVID-19 outbreak.
I am eligible for EI but the amount I can receive is very low. Can I switch over to the Emergency Response Benefit?
If you applied for EI benefits on or after March 15, 2020, your application will automatically be switched over to the Canada Emergency Response Benefit (CERB). If you already received EI benefits prior to March 15, 2020, then your entitlement continues under that program. You will not qualify for the CERB for so long as you are receiving EI benefits. If your existing EI benefit period ends before October 3, 2020 and you continue to be out of work because of COVID-related reasons, then you can apply for the CERB at that time.
I work multiple jobs. Am I eligible for benefits if I lose one job but not others?
For EI regular benefits, you must first have no income for at least 7 consecutive days to become eligible, although if you earn other income while on EI, there is a deduction that is applied.
For the CERB, you will need to confirm that you have nor earned more than $1000 in employment and/or self-employment income in a period of at least 14 consecutive days within the first benefit period, and for the entire four-week benefit period of any subsequent claim.
I am going to be laid off. My company says I need to use up my vacation time and then apply for EI. Do they have the right to force me to use my vacation time before I can apply for EI?
The rules surrounding vacation rights depend on which province or industry you work in. However, most provincial employment standards statutes allow an employer to dictate when an employee takes his or her vacation and this allows employers to insist that employees use their vacation time prior to initiating a layoff.
I remain employed but my employer has reduced my hours and salary by 50 per cent due to the impact of Covid-19 on the business. Am I eligible to claim EI and/or the CERB benefit?
You do not meet the criteria for EI regular benefits, as you must have lost your job or been laid off. To qualify for the CERB, you cannot have earned more than $1000 in employment and/or self-employment income in a period of at least 14 consecutive days within the first benefit period, and for the entire four-week benefit period of any subsequent claim.
Your employer’s ability to reduce your hours and salary by 50 per cent is a different story. Although many employees are agreeing to vast wage reductions because having a job, even if earning far less money, is better than unemployment, an employer still generally does not have the right to impose a large wage cut and doing so could be treated as a constructive dismissal.
I lost my job due to COVID-19 and I was offered severance. Will the severance affect my eligibility to claim employment insurance or the CERB?
Employment insurance is not payable until the period of time covered by the severance pay elapses and only if you still remain unemployed. You should apply for EI benefits within four weeks following your dismissal. If you wait longer, you could lose your EI benefits.
To qualify for the CERB, you must first cease working due to COVID-19 and then be without income for 14 consecutive days. Although the Government has not yet clarified whether a severance payment would be considered income, I assume that it will. Severance payments are normally treated as income and the intention of the CERB is to provide compensation to individuals who do not have other sources of money.
Keep in mind that workers can collect the CERB and earn up to $1,000 per month. If your severance is less than this amount, presumably you would be able to claim the CERB at the same time.
I was temporarily laid off and I’m collecting EI. My employer is recalling me back to work but only at 50 per cent of my regular pay. Am I obligated to return and what if I say no?
As the Federal Government rolls out wage subsidies, many employees will suddenly be recalled back to work. But not all companies will be able to provide employees with their regular hours of work or pay.
Employees are not required to resume employment where the circumstances are unreasonable. In 2008, the Supreme Court of Canada decided the Evans case, which concerned an employee who was terminated but then offered an opportunity to come back to work. In that case, the Court ruled that employees have an obligation to return to their jobs where the conditions and the pay are the same or reasonably similar. The Court clarified that if the salary is less or if the working conditions are demeaning or hostile, employees could justify refusing to return and instead claiming damages while looking for other work.
I was forced to quit due to unsafe working conditions. I was assigned a task that required me to work in close contact with someone who tested positive for COVID-19. Do I have a case even though I quit?
The fact that you resigned is far less important than whether you had a good and justifiable reason to resign. The law recognizes that a true resignation is voluntary and not forced due to circumstances outside of your control. This is especially so if your employer failed to provide you with a safe working environment or to provide for appropriate protective measures in the circumstances. You could assert that your resignation was involuntary and make a claim for severance pay, or if you asserted a work refusal and you were then forced to quit, you may have remedies under provincial or federal occupational health and safety legislation.
What is “frustration of contract” and can that be used to end my employment without severance or termination pay?
This will be an issue that eventually plays out in courtrooms across the country.
The legal doctrine of frustration of contract arises when there is an unanticipated situation and, through no fault of either party, your employment relationship becomes impossible to continue. In this case, it is not considered a termination or a resignation.
When an employment relationship is frustrated, you and your employer are essentially released of the remaining obligations owed to each other. If that occurs, employers are excused from having to provide the typical termination or severance pay they would otherwise owe to employees for terminating their employment.
It is possible that the COVID-19 pandemic could be treated by courts as the type of unanticipated event that would amount to a frustrated employment relationship but those courts will have to strike a delicate balance between the competing interests of employers and employees. This will ultimately depend on factors such as:
a. the length of the pandemic;
b. whether the employer ceased business entirely or kept operating at a reduced scale;
c. whether other employees in your same position at the company did not lose their jobs;
d. the impact of a finding of frustration of employment on both the employer and the employee; and
e. whether your employment could have continued with additional considerations or whether it was truly and completely impossible to continue at all.
Frustration of contract is a last resort and is typically reserved for the most extraordinary circumstances. COVID-19 may meet that definition but it is much too early to tell and cannot be generalized for everyone. Specific circumstances for each situation must be considered.
My long-term disability is ending soon, but my employer can’t provide me with my position back at this time. Must my employer compensate me?
Even if there is a legitimate slowdown of work, this does not liberate the company from its normal employment law obligations. Once you are capable of returning to work and performing your job following a medical leave of absence, then your employer has a duty to reinstate you. If the company delays, avoids or is otherwise unwilling to allow you to resume your employment, then it amounts to a wrongful termination. In addition, you could claim damages for discrimination if there is evidence that your employer’s decision was, in any way, motivated by your illness or disability.
What happens if all or most of the other employees were laid off? You obviously cannot expect to return to a job that does not presently exist. However, even in this situation you generally cannot be forced to accept a layoff without pay and you could treat it as a termination and still claim severance.
The answer is different for those companies subject to a provincial or federal cease work order. They cannot be successfully sued by employees who are unable to work during the period of mandatory shutdown. However, once that mandatory shutdown ends, if the employees are not recalled or allowed to work, it too becomes a wrongful dismissal.
Source: theglobeandmail.com