Authors – Alan Riddell, Kyle Van Schie
COVID-19 / Coronavirus-related Employment Law Questions and Answers for Employers
The coronavirus/COVID-19 outbreak has been wreaking havoc on businesses across Ontario and around the world. As businesses in Ottawa and Eastern Ontario temporarily close, restrict hours, or move to work from home, employers are facing difficult questions about how to continue to operate while upholding their legal obligations as employers. Here are 10 common questions and answers pertaining to whether temporary coronavirus layoffs are permitted, whether parents of young children can insist on working from home during COVID-19 and whether employers can ban employees returning from travel from the workplace.
1) Can we terminate the employment of employees who have to self-isolate (either because they test positive for COVID-19, or because they are exhibiting symptoms of the virus, or because they have recently returned from foreign travel)?
ANSWER: No, you cannot terminate their employment, due partly to the Human Rights Code, and partly to new job-protection legislation that has been enacted by the Ontario government.
As was announced on March 19, 2020, the Ontario government has just enacted immediate new job-protection legislation, whereby anyone who is required for medical reasons to go into quarantine, or to self-isolate, or to care for a family member who is required to do so, would have their jobs protected, but not their salary. This legislation now makes it illegal for employers to terminate any such employee who, for those medical reasons, is required to be away from work because of COVID-19. This legislation is retroactive to January 25, 2020
2) Can we ban those employees (who test positive for, or exhibit symptoms of, the virus) from our workplace until they have recovered and/or the 14-day quarantine period has elapsed?
ANSWER: Yes, pursuant to Section 25 of the Occupational Health and Safety Act, you can (and likely must) ban from your workplace any employees who exhibit symptoms or who are required to self-isolate. Section 25 explicitly requires employers to “take every precaution reasonable in the circumstances for the protection of a worker”, including ensuring that the worker’s place of work is reasonably safe from potential illness and contagion. Due to Section 25, you must require employees who exhibit symptoms, or are required to self-isolate, to work from home for the duration of their illness or their mandatory period of self-isolation.
3) If so, must we pay them during that ban?
ANSWER: For the most part, yes, depending on whether they are actually sick or simply self-isolating. During the ban, you must pay those who have the virus, or who are exhibiting symptoms of the virus, so long as they are actually working from home.
However, you do not have to continue paying salaries to employees who are medically unable to come into the workplace, and who are not performing work at home (unless of course they still have some unused vacation days or paid sick leave days, pursuant to their employment contract, that they would now like to use).
The law is less clear on whether you have any legal obligation to continue paying the salaries of those who are required to self-isolate, not because they are sick, but because they have just returned from foreign travel. Section 25 of the Occupational Health and Safety Act arguably requires you to ban such employees from the workplace because they arguably pose a potential risk of contagion to their co-workers. By preventing those returning employees from continuing to perform their work, at your workplace, while they are under self-isolation, Section 25 prevents them from performing the work that they are required to perform pursuant to their employment contracts, thereby (arguably) frustrating those contracts.
Pursuant to the legal doctrine of ‘Frustration of Contract’, their legal obligation to self-quarantine and/or self-isolate arguably relieves their employer of any legal obligation to continue paying them their salaries while they are self-isolating or in quarantine. At the same time, since those quarantined employees are not actually sick, and hence not suffering from any actual medical “disability” within the meaning of the Human Rights Code, they do not enjoy the same statutorily entrenched right to be accommodated as is enjoyed by those who are actually sick and/or ‘disabled’.
4) Do our employees who have not tested positive for COVID-19, or who have not been medically required to self-isolate, have the legal right to insist on working from home?
ANSWER: No, as the law currently stands, your employees who are not medically required to self-isolate are not themselves legally entitled to insist on working from home, so long as: (a) no one in your workplace has tested positive for COVID-19 (or is exhibiting symptoms thereof), and also so long as (b) you have taken reliable precautions to keep your workplace virus-free.
From a public health standpoint, employers are, of course, strongly encouraged to have all non-essential workers work from home. However, from a strictly legal standpoint, employees are currently not legally entitled to remain at home, unless authorized to do so by their employer, at their employer’s arbitrary discretion.
Needless to say, all this may change if and when the current crisis further deepens, and the Ontario government legislates mandatory bans on attending the workplace, as some European governments have now done.
5) If, after an employee who tests positive for COVID-19, or who exhibits symptoms of the virus, has been banned from the workplace (and after reasonable steps have been taken to disinfect that workplace), there are other employees who refuse to come into work for fear of contracting the virus, must we go on paying them?
ANSWER: No, you may stop paying your other employees if, after you have explained how and why the workplace is safe, they still refuse your explicit directive to come into work. In law, there is generally no obligation (save in limited circumstances) to pay an employee who fails to perform the work that he is contracted to perform.
6) Can we terminate the employment of those employees who refuse our directive to come into work?
ANSWER: Eventually yes, however, you would not be able to do so immediately, and would have to follow the procedures set forth in the work refusal provisions of the Occupational Health and Safety Act.
If an employee refuses to come into work on the alleged basis that your workplace is unsafe, you can only terminate their employment once you have observed the ‘work refusal’ procedures set forth in Section 43 of that Act. Those procedures require that a Ministry of Labour inspector confirm that your workplace is indeed safe, and then that the employee persist thereafter in refusing to return to work. If the employee persists in refusing to return to work, after the inspector has confirmed it to be safe, you could then terminate the employee’s employment.
7) Now that school is cancelled for several weeks due to COVID-19, can our employees lawfully insist on working from home, rather than coming into the office?
ANSWER: Yes, in most cases employees will be able to insist on working from home if: (a) they are the parents of children under the age of 16 (or are in a parent-like relationship with such child); (b) the child’s other custodial parent is choosing to go into work (only one, and not both, of the parents can insist on working from home); and (c) there are no alternative childcare options available to them.
This is because the Human Rights Code imposes on employers the legal obligation to accommodate the childcare needs of their employees in the absence of adequate available school/daycare facilities. The temporary closure of all Ontario public schools has created a shortage of alternate available daycare/childcare facilities, thereby effectively requiring that employers permit many parents to work at home until the schools reopen.
Moreover, on March 19, 2020, the Ontario government enacted new legislation that requires employers to provide job-protected unpaid leave to employees who need to remain at home to provide care for their children due to school and daycare closures. That legislation makes it illegal to terminate those employees who remain at home. That new legislation is retroactive to the start date of the closures.
8) Until the schools reopen, must we continue to pay employees who work from home if they do not actually perform work at home, either because they are busy minding their children, or because the nature of their work for us is such that it simply cannot be performed outside the office?
ANSWER: No, you do not have to pay those particular employees, while they are at home, if they are not actually performing work. That said, in the situation described immediately above (in Question 7) the Human Rights Code requires that before you can lawfully cease paying parents who are forced, by school closures, to remain at home to discharge their childcare duties, you must first take all reasonable steps to facilitate their attempts to productively work from home if they desire:
- By granting them more flexible work hours; and
- By granting them remote access to their workstation and computer files, and in some cases, providing them with a portable laptop computer so that they can work from home.
9) If we direct our employees to go home because we no longer have enough work for them to do, do we have to continue paying them?
ANSWER: In most cases, yes. In the case of most of your non-unionized employees, you will have no legal option other than to either: (i) continue paying them their salaries, while at home, or (ii) terminate their employment with working notice or pay-in-lieu of notice.
This is because your failure to continue paying your employees their salaries during the COVID-19 crisis, (even though your business may be suffering a very severe decline in its business revenue and work volume), will normally constitute a constructive dismissal. In law, that constructive dismissal automatically triggers your legal obligation to pay them pay-in-lieu of notice, termination pay and (if applicable) statutory severance pay.
As set forth below, in Question 10, Ontario law does not permit provincially-regulated employers to place their non-unionized employees on unpaid temporary lay-off, even when faced with a major business slow-down, except in very limited circumstances.
It must be noted that if the Ontario Government were to explicitly order a complete shut-down of your business, such that your business effectively had to suddenly cease all operations, that might possibly constitute legal force majeure and/or the legal frustration of your employment contracts with many, if not all, of your employees.
It is possible that in that particular, very extreme, situation, the frustration of those employment contracts with your employees would have the legal effect of relieving you of your normal lawful obligation to continue paying them their salaries, and of the obligation to provide them with the pay-in-lieu of notice owing due to the cessation of those salaries.
10) Can we simply place our employees on unpaid temporary layoff until the COVID-19 crisis passes and normal business resumes?
ANSWER: As stated in Question 9, above, Ontario caselaw does not permit you, even when faced with a downturn in your business, to place your non-unionized employees on unpaid temporary lay-off, nor to cease paying them their salary while you wait for business to improve, except in very limited circumstances.
Pursuant to Ontario caselaw – and in particular, pursuant to the Ontario Court of Appeal’s decision in Elsegood v Cambridge Spring Service – you cannot place your non-unionized employees on unpaid temporary lay-off unless either: (a) the employee freely and voluntarily agrees to be laid off; or (b) their written employment contract contains an explicit, and legally valid, temporary layoff clause; or (c) it is a clear, and implied, term of their employment contract that they can be placed on unpaid temporary lay-off.
By way of example, it is a clear and implied term of the employment of many casual workers (such as construction workers, seasonal agricultural workers and many restaurant servers) that they will simply not be called into work whenever the volume of business declines, and hence that they can be placed on unpaid temporary lay-off for the next few months, until business improves.
Such situations, where you will be legally entitled to place your employees on unpaid temporary lay-off pending the end of the COVID-19 crisis, are statistically rare since the limited exceptions apply only to a relatively small portion of Ontario’s non-unionized workforce.
For specific information about these limited exceptions, where you can place your employees on unpaid temporary layoff, pending the end of the COVID-19 crisis, please contact Soloway Wright via telephone 613-236-0111 or 1-866-207-5880.
Should you need more verbal or written information on any of these questions, or should you require legal advice or assistance with layoff notices, please do not hesitate to contact our Employment Law specialists.
