COVID-19 Return to Work – Top 10 Employee FAQs | Author: Bram Lecker, Employment Lawyer
Most of us entered the COVID-19 emergency in March, fully expecting signs of normalcy to return over the summer months. Now that the province has opened up for business, we have come to grasp a new reality. Normalcy means learning to live safely with the virus. Consequently, let’s digest what this means for Ontario workers. The Occupational Health & Safety Act (OHSA) requires employers to provide safe work environments for workers. However, the legislation was drafted before anyone could imagine that a highly contagious and dangerous virus would threaten workplaces everywhere. And this leaves some employees concerned about their safety at work.
In addition, most people have felt the impact of the pandemic economically. The sudden work stoppages, temporary changes in employment laws, and unclear return to work circumstances have left many stressed out about their financial security, wages and job status. This blog provides answers to typical COVID-19 Return To Work questions we have received over the last few weeks.
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 and maintain physical distancing. They might communicate procedures for disinfecting surfaces and 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 open up 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.” This would give your employer grounds to terminate your employment for the abandonment of duties.
Do you have a pre-existing medical condition 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. Furthermore, 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. Note that 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.
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.
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 obligates all parties to think outside the box to find creative solutions so everyone 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.
The law required workplaces to make provisions for accommodating ill employees even before COVID-19. And 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 gives you 3 unpaid sick days per year. These will seem laughable to anyone who has to self-quarantine for 14-days, or needs time to recover from a COVID-19 infection. However, 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.
If you need time off to tend to a loved one afflicted with COVID-19, then Family Medical Leave (FML) offers you up to 27 unpaid weeks off per year to do just that. Almost all employees are eligible for this leave, regardless of your length of service or status as full-time or part-time.
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.
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 4, 2020. During that period, 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.
Unfortunately, we do not have a clear answer for you. Under normal circumstances, this would constitute a constructive dismissal. 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.
We are not sure how courts will treat constructive dismissal cases brought forward under these unprecedented circumstances. If you believe your employer is acting unfairly, contact us for a review of your situation.
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 CERB (Canada Emergency Wage Benefit) or EI (Employment Insurance).
In this matter, 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 to keep you on unpaid leave, indefinitely.
On September 4, 2020, provisions that allow employers to continue extended layoffs under the emergency 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.
About The Author
Bram Lecker, B.A., LLB., is the principal of Lecker & Associates, and one of the most experienced employment lawyers in Ontario. For over 35 years, he has successfully represented employees in disputes against their employers.
Contact Lecker & Associates for a complimentary assessment of your employment matter