Authors – Alan Riddell, Kyle Van Schie
COVID-19 / Coronavirus-related Employment Law FAQ for Employees
The coronavirus/COVID-19 outbreak has been wreaking havoc on businesses, organizations and their employees across Ontario and around the world. As businesses in Ottawa and Eastern Ontario have been forced to temporarily close, restrict hours, reduce staff or implement different working arrangements, employees are facing difficult questions about how to respond to the changes, and what are their legal rights amidst all of the uncertainty.
Here are five 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 unilateral reductions in hours or salary are allowed.
If you have questions about any of the following situations, or your other rights as an employee, call us at 613-236-0111 Ext.3187 or email us to make sure you are receiving what you are owed.
1) If I have to self-isolate (either because I test positive for COVID-19, or because I am exhibiting symptoms of the virus, or because I have recently returned from foreign travel) can I be terminated from my employment?
ANSWER: No. An employee cannot be terminated from their employment, due partly to the Human Rights Code, and partly to new job-protection legislation that has been enacted by the Ontario government.
According to the Ontario Human Rights Commission, the Human Rights Code makes COVID-19 a protected “disability”. Accordingly, if an employee tests positive, or exhibits symptoms of the virus, an employer must accommodate that employee by arranging, amongst other measures, for them to self-quarantine and to work from home until they recover.
As was announced on March 19, 2020, the Ontario government has also enacted additional 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) Given the cancellation of school, and the lack of daycare/camps available over the summer due to COVID-19, can I lawfully insist on working from home, rather than coming into the office?
ANSWER: Yes, in most cases employees are 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 closure of all Ontario public schools and the lack of alternate available daycare/childcare facilities, thereby effectively requires that employers permit many parents to work at home until the schools reopen.
Moreover, on March 19, 2020, the Ontario government enacted 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 was retroactive to the start date of the school closures.
Note: Before an employer can cease payment to employees who are not able to work from home because of childcare or other duties, an employer must first take all reasonable steps to facilitate the employee’s attempts to productively work from home:
- 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.
3) If my employer directs me to go home because they no longer have enough work for me to do, am I entitled to continue to be paid?
ANSWER: Yes, in the case of most non-unionized employees. Employers must either: (i) continue paying their employees’ salaries, while at home, or (ii) terminate their employment with working notice or pay-in-lieu of notice.
An employer’s failure to continue paying their employees their salaries during the COVID-19 crisis, (even though their 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 an employer’s legal obligation to pay those employees pay-in-lieu of notice, termination pay and (if applicable) statutory severance pay.
If you have been directed to go home and are not being paid, and have not received working notice or pay-in-lieu of notice, please contact us to discuss your situation.
4) Can I be placed on unpaid temporary layoff until the COVID-19 crisis passes and normal business resumes?
ANSWER: No, as stated in Question 3, above, Ontario caselaw does not permit employers, even when faced with a downturn in their business, to place non-unionized employees on unpaid temporary lay-off, nor to cease paying them their salary while they wait for business to improve, except in the following very limited circumstances:
- the employee freely and voluntarily agrees to be laid off;
- the employee’s written employment contract contains an explicit, and legally valid, temporary layoff clause; or
- it is a clear, and implied, term of the employee’s employment contract that they can be placed on unpaid temporary lay-off.
If you have been placed on temporary layoff and believe that none of the above is true, please contact us to discuss whether you are entitled to compensation.
5) Can my employer reduce my hours or my salary without my consent?
ANSWER: Yes, but only to a limited extent. The courts generally accept that an employer is unilaterally entitled to reduce an employee’s hours or salary without that employee’s consent so long as such cuts are less than 10%.
If an employer unilaterally reduces an employee’s hours or salary by 10% or more, without that employee’s consent, that typically amounts to a constructive dismissal entitling the employee to claim constructive dismissal to obtain pay-in-lieu of notice, termination pay and (if applicable) severance pay. And even if the employee does not want to resign and claim constructive dismissal, they may be entitled to commence a lawsuit to recover the amount of salary that their employer unilaterally withheld contrary to their employment contract.
If any of the above situations apply to changes in your employment during COVID-10, we invite you to contact Soloway Wright’s Employment Law specialists via email or telephone at 613-236-0111 Ext.3187.
