When the COVID-19 emergency was declared in March, we expected signs of normalcy to return over the summer months. Now that the province has re-opened for business, we have come to grasp a new reality; learning to live safely with the virus. Let’s digest what this means for Ontario workers.
The Occupational Health & Safety Act (OHSA) requires employers to provide and ensure safe work environments for workers. The legislation was drafted before anyone could imagine that a highly contagious and dangerous virus would threaten workplaces everywhere. This leaves some employees concerned about their safety at work.
Most people have felt the impact of the pandemic in their wallets and purses. Sudden work stoppages, unclear return to work circumstances and temporary changes to employment laws have left many worried. This blog provides answers to employee questions about a COVID-19 Return To Work that we have received repeatedly.
I don’t feel safe about going back to work. What can I do?
The Ministry of Labour has published guidelines employers must follow prior to opening up for business. The requirements will vary depending on your job sector. Your employer may now require you to wear personal protective equipment (“PPE”) and maintain physical distancing. They might communicate procedures for disinfecting surfaces, provide hand-washing supplies and alcohol-based hand rub for employees’ use. Some organizations will even put their staff through updated health and safety training.
If your employer has not established safety protocols yet, or you continue to encounter unsafe situations, then engage in a dialogue with your manager by bringing concrete examples to the table. If you disagree with your employer, the law permits you to escalate the matter to the Ministry of Labour or seek legal advice, without fear of reprisal. However, it will not support you for staying away from work for subjective reasons that leave you “feeling unsafe.” (e.g. “my co-worker is not diligent about wearing a mask”). This would give your employer grounds to terminate your employment for the abandonment of duties.
As a senior or immunocompromised person, do I have to go back to work?
Do you have a pre-existing medical condition (e.g. a major heart surgery done in years prior) that puts you at a greater risk for serious complications if exposed to COVID-19? If so, you have the right to refuse unsafe work even if the worksite seems safe for others. The Ontario Human Rights Code affords you protection on disability grounds. You simply require medical documentation of the increased risk of exposure to your health.
However, your employer cannot demand a diagnosis and they have a duty to accommodate your medical needs. Accommodations could include an unpaid leave of absence for a specific period, remote working arrangements and even job reassignment. Consulting with an employment lawyer before speaking to your employer will help you manage this situation tactfully and productively.
As we settle into treating COVID-19 as a long-term threat, senior employees with tenured work history may want to consider early retirement as an option. This can become mutually beneficial if you reach an agreement with your employer about a fair severance package. Engaging an employment lawyer to negotiate the terms will allow you to maximize your entitlements without getting involved in testy arguments.
What are my options as a caregiver to an immunocompromised family member?
Many individuals worry, not about themselves, but about bringing the virus home to infect a vulnerable family member. Your right to refuse unsafe work under the “dangerous circumstances” provisions, unfortunately, does not extend to individuals outside the workplace. This means you should not rely on protections under this legislation if you bring the virus home from work.
However, the Ontario Human Rights Code protects you from discrimination on the grounds of family status. While it is limited solely to parent-child relationships, it allows you to seek accommodation from your employer as a caregiver. Can your workplace modify your duties or allow you to work from home, for example? If your employer refuses to engage in any accommodation discussions, consult an experienced employment lawyer about your circumstances and the chances of a successful discrimination lawsuit.
If the family member in question is not your child, then you might have to look into alternatives. At the height of the pandemic, some frontline medical professionals opted to live apart from their families until the extreme threat subsided. Alternatively, you can also exercise your right to an unpaid leave of absence. In this case, obtain advice from an employment lawyer to reduce friction with your employer.
I am a parent opting to keep my kids at home. Can my employer penalize me for making this choice?
School boards in Ontario are presently scrambling to figure out how to deliver education safely in the fall. We now know that students can attend in-person classes or receive schooling online. The stress of balancing careers with parental duties has always existed in households across Canada. However, COVID-19 has exponentially increased the burden for parents of young children who believe they remain safer at home.
Fortunately, the law offers you considerations and it has done so for decades. In 2003, we represented Michael Hilton, a father of four, in a lawsuit that escalated up to the Supreme Court of Canada (SCC). His employer refused to consider any proposals he made to allow him to balance his work duties with his parenting obligations. They consequently fired him. The SCC ruling was strong and unequivocal. It sent a clear message about parental rights across Canada. You may refuse work that detrimentally impacts your parental obligations. And you would have grounds for a discrimination claim under the Ontario Human Rights Code, based on your family status if your employer refuses to accommodate your needs or takes punitive action against you because of it.
If you are considering keeping your children home from school or daycare, then the first matter to review is how you would fulfil your work obligations while also managing kids. For example, connecting with other parent groups in your area may allow you to create “small pods” where multiple parents share the routine to mind the children while they receive online tutoring. In some households, both parents might work in shifts to accommodate childcare. Once you have the solutions worked out for your circumstances, approach your employer about the type of accommodation you require. Technology allows many individuals to productively perform their tasks from home. If you must work from an office in person, do you require modified hours or a 4-day work week?
COVID-19 has forced us all to find creative solutions so we can start living safely with the virus. The law requires your employer to accommodate you up to a point where they can claim undue hardship. And the courts set this bar very high. If your employer refuses to engage, even after you have communicated your circumstances and proposed reasonable options, contact us. Leaving you in an untenable position with childcare contravenes the law.
I have fallen ill or I need time off to care for a sick family member. What are my sick leave entitlements?
The law required workplaces to make plans for accommodating ill employees even before COVID-19. Your sick leave entitlements will depend on the benefits you receive from your employer. If you have been employed for at least two weeks, the law previously entitled you to 3 unpaid sick days per year. These seem laughable to anyone who has to self-quarantine for 14-days, or needs time to recover from a COVID-19 infection. Accordingly, on April 29, 2021, the Ontario COVID-19 Worker Income Benefit came into effect, which provides eligible employees with up to three (3) non-consecutive days of paid infectious disease emergency leave because of certain reasons related to COVID-19. The paid leave is available to eligible employees until September 25, 2021.
Further, the federal government EI Sickness Leave Benefit will provide most Canadians with some financial coverage in the face of an illness or quarantine. Some workplaces offer paid sick leave and short-term disability coverage; unionized jobs often come with superior sick leave entitlements. Our provincial laws protect your job while you recover.
I have recovered from a COVID-19 infection and am cleared to return to work. I am afraid of discrimination. What should I do?
First of all, congratulations on surviving a deadly virus. The last few weeks and months must have been very difficult. Before you rush back to work, make sure you understand your physical limitations, therapy and follow up care plans. Some recovered patients suffer long-term pulmonary and cardiac problems. Ask your physician to provide you with a gradual return to work plan, should you need to take things slow for a while. If a medical professional has cleared you for work, then you are not infectious. You must follow the same health and safety rules as everyone else at your workplace. Nobody should treat you with aversion.
The law requires your employer to accommodate your needs, as long as it does not create an undue hardship to their operations. Unfortunately, employees on sick leave often face threats to their employment not during the illness, but after returning from an extended leave of absence. Accommodation requests are not always welcome at workplaces. Unfortunately, some employers will not care for unproductive employees, no matter what the situation. Accommodating ill or disabled employees can add costs, cause disruption and affect the processes employers have always had in place. And furthermore, if the person who filled in for you is doing a good job, then your request for accommodation will simply be viewed as additional aggravation.
This is when some employers might start treating you like “damaged goods” and telltale signs of harassment will set in. Your supervisor could demote you, subject you to an unreasonable workload or berate and humiliate you in front of others, isolate you from meetings, and make you the subject of malicious gossip and rumours. Approaching HR sometimes makes things worse, and you get pegged as the troublemaker. Recognize all of these as attempts to make you quit unwillingly. Before you do, contact us. Bullying and harassment are illegal in Ontario. Almost always, this situation requires legal intervention.
I was laid off more than 13 weeks ago, and had my work benefits cut. Am I entitled to severance pay?
Under normal circumstances, the Employment Standards Act (ESA) permits layoffs up to 13 weeks without benefits. Employers can extend layoffs to 35 weeks with the maintenance of benefits and seniority. The COVID-19 pandemic prompted the Ontario government to temporarily kneecap the latter with IDEL (Infectious Disease Emergency Leave) until September 25, 2021 at which time non-unionized employees will no longer be deemed to be on infectious disease emergency leave. Until then, the law will not consider you fired and entitled to severance.
If you remain laid off beyond that date, however, or have not received a recall date, then consult an employment lawyer, particularly if your employer has not offered you a termination package. We will advise you about your rights regarding constructive dismissal, which might entitle you to termination pay. Never sign termination documents until a lawyer has vetted them.
My employer has recalled me, but with reduced hours and /or wages. Must I accept this?
This is a controversial area of law that has been impacted by the pandemic. The answer to this depends on your job: if returning to work would be humiliating or if you were on a “sham” layoff you may not have to return. But, as the beginning of the end of the pandemic period nears, the law is slowly reacting to this question as workers prepare to return to workplaces. Unless it is so obviously demeaning to return, you may be required to return to work. Extreme caution should be exercised before you decline to be recalled and we strongly recommend you speak with an employment lawyer before rejecting an offer to return.
The pandemic caused mass layoffs for health and safety reasons. However, even businesses that remained open during the emergency, like restaurants, saw large decreases in revenue. They required fewer workers and offered fewer hours of work. Since Phase 3 of the commercial opening, many other businesses have opened up. But it is far from business as usual. Thousands of employers have applied for CEWS (Canada Employer Wage Subsidy) because they are not at pre-COVID-19 revenue levels. And consequently, they may need employees to accept wage cuts and fewer hours simply to stay afloat.
The reduction in hours or wages must be related to the covid-19 pandemic and not be a substantial change (i.e. a loss of more than approximately 15% of your income). Ontario courts may protect employees’ hard-fought right to seek damages for constructive dismissal, but this is an evolving area of law that does not have a definitive answer as of writing this.
If you believe your employer is acting unfairly, contact us for a review of your situation.
Can I stay on Canada Recovery Benefit and not return to work for a few more months?
If you have received a recall date, some COVID-19 related circumstances, (described in the questions above) would allow you to remain on protected leave. Beyond those reasons, we advise everyone to report for work when your employer recalls you. Not doing so will give them grounds to fire you for the abandonment of your duties. And this would render you ineligible for the Canada Recovery Benefit (“CRB”) or EI (Employment Insurance). The Canada Recovery Benefit program gives income support to employees who are directly affected by COVID-19 and are not entitled to Employment Insurance (EI) benefits. You can currently receive $1,000 gross for a 2-week period up to a total of 19 eligibility periods between September 27, 2020 and September 25, 2021.
My employer has recalled others, but not me. Should I worry about my job security?
On this question, we ask employees to remain open, yet vigilant about your employment status. Your employer might legitimately not require a full complement of staff if the business is not running fully up to speed. Yet, the law does not give them carte-blanche power to keep you on unpaid leave, indefinitely, and not past September 25, 2021 as of today’s writing. This may change if Ontario faces a fourth pandemic Covid-19 wave.
On September 25, 2021, provisions that allow employers to continue extended layoffs under the emergency regulation expire. At this stage, your employer has three choices. They must either recall you back to work, extend your layoff according to the terms allowed in the ESA, or terminate your employment.
Unfortunately, this is precisely the type of environment where unscrupulous employers will try to walk in a murky gray zone between layoffs and terminations, counting on employee ignorance of the law. An economic downturn presents them with an opportunity to clean up shop, issue layoff notices in bad faith to save on payroll, all while also avoiding the bill of termination packages. In this case, they will frustrate you with indefinite and unpredictable layoffs, hoping you will quit. Such “sham layoffs” are illegal. Contact us right away if you believe your employer is not playing fairly and taking advantage of this situation.
Can my employer require me to be vaccinated?
This is a highly contentious issue which we recently answered in depth here. For brevity’s sake, the short answer is, it depends on your job and the industry you work in. Employees dealing with vulnerable classes of people will likely be required to vaccinate, failing which they could potentially expose themselves to ‘for cause’ termination. There is no clear law on this issue as it relates to non-unionized workers yet.
Of course, an employer’s policy must be clearly communicated and consistently enforced. If you are an employee who regularly interacts with vulnerable sectors while performing your job duties (i.e., Long-term care home workers, hospital workers, child-care workers), your employer must give you a reasonable amount of time to comply with such a policy.
For workplaces where contact with vulnerable classes is scarce, employers cannot arbitrarily terminate an employee for a) refusal to disclose vaccination status; and/or b) refusal to vaccinate. Ultimately, employers have the power to terminate an employee without cause for any reason provided it does not offend other germane legislation (i.e., the Human Rights Code). Accordingly, an employer could terminate an employee who has reservations about the vaccine without cause, by providing them with their severance entitlements, if they work in critical health and safety industry and the termination is unrelated to a protected ground (i.e. “my religion or creed prevents me from accepting vaccinations” etc.). Smarter, less tyrannical employers will likely introduce workplace policies that either incentivize vaccination or mandate it. Human nature being as it is, employers would be well-advised to use the former approach, instead of the latter. Top-down edicts from employers rarely go down well with employees and are often detrimental to employee moral. This is especially the case where the edict in question pertains to very personal medical decisions like being vaccinated.
If your employer chooses to mandate, it must implement such a requirement through policies that are sufficiently clear and rationally connected to your job duties. In that regard, a mandatory vaccination policy may not be suitable for employees working remotely.
Your employer is also subject to strict privacy laws. Accordingly, disclosure of your vaccination status is highly sensitive medical information that should not be disclosed and shared with only a select few individuals in the organization on a need-to-know basis. Further, vaccination requirement policies may engage certain grounds of human rights legislation for employees who hold bona fide religious reasons for abstaining from vaccines, and those who may be predisposed to greater medical risks from vaccination.
Contact us for representation if you find yourself in the unfortunate situation of being fired during the pandemic without severance and notice.
Lecker & Associates has practiced employment law for over 35 years. We exclusively represent employees of Ontario. Our team of employment lawyers have the knowledge, experience and ability to handle challenges that often surface in relationships between employees and their employers.