KPA Lawyers – March 20, 2020

I’ll say it – there’s a pandemic and a declared state of emergency in Ontario. Those are scary words in an already scary time. No one knows what to do, or which path is the best path. My phone and emails have been going crazy with questions like: I’m scared for my health – what can I do to protect myself? My employer is still operating but I’m not sure it’s safe to be out here – can I walk off the job? I’ve been laid off – what should I do?

On top of that, the options for employees are confusing. At the time this article was written, the Canadian Government has offered a significant amount of relief for employees who are struggling with the outbreak and the resulting business shutdowns. But the announcements have been piece-meal and made over the course of the what feels like the longest week in recent memory. It’s hard to keep track of what’s out there and what’s not.

This article is meant to answer common questions asked by persons living in Ontario who are employed in hourly or salaried positions with employers who are either closed, partially closed, or still operating. A few questions I’ve been asked by self-employed persons and small business owners will appear at the bottom of the article.

This article does not address the rights of federally regulated employees. If you are a federally regulated employee and wish to learn your rights under the Canada Labour Code, please contact our office.

Details about the new benefit payments announced up to March 30, 2020 have been added below.

For All Individuals:

1. What is the difference between being laid off, being ‘fired’, and a temporary lay-off?                            Each of the named items – being ‘laid off’, being ‘terminated’ or ‘fired’, and being ‘temporarily laid off’ – is a different item legally speaking.

Being ‘laid off’ is when your employer ends your employment permanently, normally because there is not enough work to keep you employed. This is sometimes called a ‘work shortage’ layoff. When you are ‘laid off’, you are entitled to termination pay, severance, and all the usual benefits that come along with being terminated. The only difference is what appears on your Record of Employment (known as an “ROE”) – your ROE will say that there was a ‘work shortage’. This lets you apply for E.I. if you need to, since the reason your employment ended was not your fault.

Being ‘terminated’ or ‘fired’ is when your employer ends your employment permanently, normally for reasons other than a work shortage (though sometimes the terms overlap). If you are terminated ‘without cause’, you can normally apply for E.I. benefits. If you were terminated ‘for cause’ (or ‘fired’) you may not be able to apply for E.I.

A ‘temporary lay off’ is not the same as being ‘laid off’ or ‘terminated’ or ‘fired’ at law. A ‘temporary layoff’ is when your employer temporarily ends your employment by giving you significantly less work/pay (50% or less) or when they stop giving you work/pay altogether. This temporary law off period lets the employer stop paying you without paying you notice pay or termination pay (the ‘two weeks pay’), but it’s done on the understanding that the employee will be called back to regular work/pay within a set period of time (usually, an employer can only cut back on work for 13 out of 20 consecutive weeks, and can extend this to be 35 weeks in a 52 week period, though this may be modified if you are a member of a union). The biggest difference between being ‘laid off’ and being ‘temporarily laid off’ is two things -1), your employer must continue to provide you with benefits during this period (if you have benefits) and 2) At the end of the 13 week period, the employer must reinstate you at work. If the 13 weeks ends and you have not been recalled to work, you are considered ‘terminated’ and are owed termination pay.

Please note, an employer cannot impose a temporary lay off on you unless you agree to it in writing. You may have already agreed to it in your employment contract (if you have one) or your employer may have the right to do this if you are a member of a union. If you did not already agree in writing, and your employer proposes it later, at the time it’s proposed, you have a choice – either accept and have your benefits (and seniority, vacation entitlements, and other rights that grow over time) continue; or, you can take this chance to accept a lump sum termination payment and move on to something new.

If you have not agreed to it, or your employer does not make this kind of proposal to you, it’s most likely that you’ve been ‘laid off’ – or that your employment has ended ‘permanently’ in the eyes of the law. This does not mean your employer won’t rehire you when this is all over. However, it means at law, they’re not required to.

2. My employer was forced to close by the Ontario government’s emergency order – what are my options for my employment?                                                                                                                      Updated March 30, 2020.

There are a few options here that depend on how your employer is going about this.

Agree to a Temporary Lay Off. You and your employer can agree that you will be temporarily laid off. For most people, this will mean that you need to get your Record of Employment from your employer and apply for E.I. benefits. If you are an employee with benefits, if you are being temporarily laid off, you will no longer getting your wages, however, your employer must continue to pay your extended health and other private benefits (like contributing to your pension or RRSP). To replace your income, you will need to apply for E.I. benefits. This leave can last for no more than 13 weeks in a 20 week period, or be extended to 35 weeks in a 50 week period. If you are not recalled to work at the end of this period, you have been terminated an are entitled to termination pay.

Request Emergency Leave. Under Section 50.1 of the Employment Standards Ac, you can inform your employer that you are going on leave because an emergency order has caused you to become unable to do your work (which normally means your work place is closed). Under this section of the ESA, you are not entitled to pay, but your job security is protected until the emergency is over.

Termination. You could be terminated permanently from your employment. Make sure you get termination pay, severance pay (if appropriate) and a payout of unpaid wages and vacation pay (if any).

Take Vacation Time. There’s one other temporary option your employer and you can agree to, but it’s short-term. If you haven’t been paid vacation pay yet your employer wishes to place you on an involuntary vacation so you keep getting pay, they can do that. If your employer provides you with paid sick days (and the law does not require them to), then you can also ask if you can use your paid sick days. If you don’t have vacation pay and you don’t have paid sick days, you will likely have to rely solely on E.I. as replacement income.

A link to application for E.I. benefits can be found at the bottom of this article.

If you cannot qualify for regular E.I. Benefits, the federal government is also offering the “Canada Emergency Response Benefit (CERB)*” (a payment of up to $2,000 per individual for 4 months) to employees facing unemployment.

There are other things the Federal government is doing to help individuals cope with the strain of losing their jobs. For example, they are offering a deferral on student loan payments, have worked with banks to allow people to defer mortgage payments, and are opening up ‘special care benefits’ through E.I.

Link below for details on this benefit.

3. My employer has temporarily laid me off – what does this mean? Is my job safe?                                  Updated March 30, 2020:

See the answer to Q  uestions 1 and 2, above. In short, your job is protected for at least the next 13 weeks. Your employer is required to recall you after 13 weeks, or they can inform you that an extension of the temporary lay-off is occurring for up to a total of 35 weeks. They must continue your benefits (if any) during this period.

4. My employer hasn’t been ordered to close but is closing down anyways and I can’t work from home – what are my options?

You are probably in the same position as the people who came from employers who were shut down by the order of the Provincial government (Question 2). You’ve probably either been laid off or on a temporary lay-off. Either way, you will probably need to apply for E.I.                                                              A link to application for E.I. benefits can be found at the bottom of this article.

5. I’m having a hard time paying my bills and making ends meet without pay – what are my options with my bills?

1. Rent. There is no federal or provincial break on rent, nor is any order expected to come out mandating landlords not to collect rent. However, evictions in Ontario have temporarily been put on hold. The Landlord and Tenant Board is not operating at full capacity either. While you may not have a break on your rent, you can’t be evicted right now. That said, if you must prioritize your bills, prioritize your rent. Once evictions are available again, you will be at immediate risk for eviction, and if you can’t catch up immediately, you will likely be evicted immediately. Even if you aren’t evicted at that time, it exposes you to risk for ‘frequent late payment of rent’. If you must prioritize, prioritize rent.
2. Mortgages. Banks in Canada are currently offering to defer mortgage payments for up to six months. Contact your bank or lender to discuss terms.
3. Student Loans. If you have student debt, a plan has been announced to implement a six-month, interest-free, moratorium on Canada Student Loan payments for all individuals who are in the process of repaying their loans. This will be automatic and does not require you to apply. However, you can also contact Canada Student Loans about a temporary student loan revision of terms. Updated March 30, 2020: This is now in effect.
4. Loans, Lines of Credit and Credit Cards. There is no federal or provincial order offering a deferral or break on private and consumer debts at this time.
5. Utilities. There is no federal or provincial order offering a deferral or break on utilities at this time. Check your local municipalities and utility providers to see if they are offering anything in your city or town.
6. Taxes. Taxes (both filing and payments) are on hold under the end of August.

6. My employer has closed down and has placed me on a ‘vacation’. I didn’t agree to take vacation time – is that legal?

Yes – Section 35 of the Employment Standards Act says that an employer “shall determine when an employee shall take vacation for a vacation entitlement year”. The words ‘shall determine’ here makes it mandatory – meaning, the employer gets final say on when vacation is taken, and therefore, when it gets paid.

7. My employer is not closing and I’m still at work – what are my rights?

Under the Occupational Health and Safety Act, if you have a reasonable basis to believe that you are in danger by doing certain work / that your workplace is dangerous, then you are entitled to refuse to do the work (this is sometimes known as ‘walking off the job’) until your employer had investigated the matter and reported back to you about whether or not there is a danger at work. However, if your employer has already done something like a risk assessment and has determined that there is no danger to you (using the best science and information available on that date), or has taken reasonable precautions to safeguard you in the workplace, you may not be entitled to refuse to work. Whether or not you are entitled to refuse to work is advice and regrettably, I can’t give advice without doing a bunch of paperwork about it first. On top of that, what counts as a ‘reasonable precaution’ or ‘reasonable efforts to safeguard you in the workplace’ is not well defined at law, because well, there have not been a lot of lawsuits about pandemics before in Canada.

If you feel that you are in danger in your workplace, talk to your employer if you can and ask them what steps they have taken to safeguard you at work.

8. My employer is not closing but I want to self-isolate because I’m worried about my health – what are my options?                                                                                                                                            Updated March 30, 2020:

Your options are limited here, assuming that your employer has taken all the necessary precautions to keep your workplace safe. Talk to your employer about your personal worries if you can. Ask your employer if they can accommodate letting you work from home. If they cannot accommodate this, or decline to accommodate this, and they have assessed the risk in your workplace, you may not have a right to refuse to appear at work. Refusing to appear at work may be considered insubordination or quitting. If you are fired for cause (for insubordination) or quit,. you will not be entitled to E.I. in most cases.

9. I’m still at work and want to wear a mask and gloves – can I do that? What if my employer tells me I can’t?

If you would like to wear a mask and gloves to work, you may be allowed to. However, your employer’s workplace policies or uniform policies may not support this and similarly your employer may not support you doing this either. While the law cannot stop you, the law does not give you the right to do this unless you can prove (key word here) that it is medically necessary for you to do so. This can mean things such as getting a doctor’s note or showing your employer a published and peer-reviewed article that supports that this a worthwhile and necessary precaution. Medical necessity is based on the most currently available science, and given the rapidly changing nature of this disease and what we know about it.

On the other hand, if you can prove that it is a scientifically supported necessary precaution (such as people who work customer-facing jobs every day and have little ability to distance themselves socially), your employer may be required to provide you with protective equipment. The challenge is that there is no clear cut lines – case law has not defined what ‘reasonable precautions’ are for pandemics.

10. My employer is not closing down but has sent me home because I’m showing COVID-19 like symptoms. What are my options?                                                                                                              Updated March 30, 2020

If your employer send your home because you are sick, then you should either be paid sick leave pay (if you are entitled to it under your employment contract), or apply for sickness benefits (through work or through E.I. benefits).

11. I have been told to self-isolate because I have traveled recently or came into contact with someone who has COVID-like symptoms – what are my options for employment and income?                Updated

As with Question 8, if your employer can accommodate work from home, you can continue your employment from home. If your employer cannot accommodate work from home, you can apply for “Canada Emergency Response Benefit (CERB)*”, which is a special form of E.I. benefits. The application will be available in April 2020

In the meantime, apply for E.I. sickness benefits and see if you qualify for that. The Canadian Government has also waived the one-week waiting period for E.I. sickness benefits for those quarantined due to COVID-19.

A link to the regular E.I. sickness benefits can be found at the bottom of this article.

12. I have been directed by a medical professional to self-quarantine because I have COVID-like symptoms – what are my options?                                                                                                                  Updated March 30, 2020:

Similar to Questions 8 and 11 – if you are not so sick that you cannot work, see if your employer can accommodate work from home. If your employer cannot accommodate working from home, you will likely qualify for “Canada Emergency Response Benefit (CERB)*” through E.I. As with Question 11, the application for these special benefits will be available in April 2020.

In the meantime, if your workplace offers private benefits, ask about applying for short term disability benefits. If you do not qualify for those, or do not have benefits, apply for regular E.I. sickness benefits.

The Canadian Government has waived the one-week waiting period for E.I. sickness benefits for those quarantined due to COVID-19.

A link to the regular E.I. sickness benefits can be found at the bottom of this article.

13. I’m not sick but I am taking care of someone who is sick – what are my options?                            Updated March 30, 2020:

Employees, including the self-employed persons, who are taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick, but do not qualify for E.I. sickness benefits, will be eligible for an “Canada Emergency Response Benefit (CERB)*” through the regular E.I. process. Applications for this will open in early April 2020.

14. My employer is asking me to do work that’s not in my usual duties and is not in my job description – is that allowed?

This answer is surprisingly complex, but I will try to provide a very simple answer.

The first part of the very basic answer is: your employer can change your job duties if you agree to it. However, whether you ‘agree’ to it doesn’t mean that you must agree to at the time the job duties are assigned to you – you may have agreed to it already. Your employment contract, your mutual understanding of your job duties as of the date you were hired, your union contract, a collective bargaining agreement, even your prior behaviour at work may have been you ‘agreeing’ to it.

The second part of the very basic answer is: Your employer can if it’s not too big a change. Whether or not something is ‘too big’ a change is very circumstantial. It can depend on things like: are you trained for the job? Is this what you signed up for? Did you think you could be asked to do this job at the time you were hired? Has something changed recently in your role?

The whole assessment forms a complex area of law known as ‘constructive dismissal’. This area of law is too complex to summarize is a general information article such as this. If you have questions about your specific circumstances, we are still taking phone consults and would be happy to answer your questions.

15. My employer is asking that I attend a mandatory health screening at my workplace. Do I have to submit to them? What are the repercussions if I refuse? What if I agree to undergo a health screening?

This answer is complicated. I’ll try to simplify.

The health screening is likely to ensure that your workplace is safe from coronavirus. While time consuming and likely costly, this measure is prudent considering the circumstances. After all, the employer has a duty to provide a safe workplace to all employees. However, the health screening and the need for a safe workplace must be balanced with your right to privacy. If the health screening is not related to checking for symptoms of COVID-19 and is not related to a bona fide job requirement, it may be a violation of your privacy. If the screening is only for COVID-19 or other bone fide job requirements, then you are likely required to undergo a screening. However, even if you undergo a screening, your employer must keep your health information private. Personal health information is strongly protected at law, and violations for disclosure of private information is severely penalized.

16. I am an ‘essential service worker’ (such as grocery store clerk, a bank teller, or a custodian). Are there any differences or exclusion at law for workers who are deemed to be essential service?

No additional rights or privileges have been extended to ‘essential service workers’ at this time.

For Individuals and Households with Children Home From School:

17. My employer is not shutting down and my children are home from school – do I have to go back to work?                                                                                                                                                                  Updated March 30, 2020:

This depends on                                                                                                                                                      Trudeau recently announced a benefit for parents who had to stay home to care for children out of school, meaning, for parents who have no choice and no alternative, there is support in place for you called the “Canada Emergency Response Benefit (CERB)*”. I expect that before you avail yourself of this benefit, you will likely be required to look for alternative childcare arrangements. Only if you cannot find alternative childcare arrangements after making your best efforts would you be entitled to this benefit.

Details about the CERB* can be found below.

Additionally, the Federal government plans to temporarily boost the Canada Child Benefit by $300 per child to help parents cover the cost of childcare or other impacts of having to stay home. This benefit will be delivered as part of the scheduled CCB payment in May. Those who already receive the Canada Child Benefit do not need to re-apply.

18. What kind of accommodations do businesses have to make as per the Human Rights Code for families with children and no childcare?                                                                                                  Updated March 30, 2020:

Parents who have children and are required to stay home to take care of sick or quarantined children will be able to take leave from work with their job protected. This means that if you need to be absent from work to take care of your children, your employer cannot use the fact that you need to stay home as a reason to terminate your employment, This kind of leave is protected at law under both the Employment Standards Act and the Ontario Human Rights Code.

Additionally, if you require accommodation in order to be able to meet your parenting duties – such as having a modified schedule or hours so you can care for your children, especially younger children such as infants and toddlers – your employer should accommodate your need to be a parent while working from home.

18a. My employer is asking me to work from home without interruption from my children – is that allowed?                                                                                                                                                          Updated March 30, 2020:

In short, yes, but.

Yes – as a general rule, your employer can ask you to perform work without distraction and over the entire period of your usual working day (say, 8-4 or 9-5). This applies even when you are working from home. You are on the clock, and so your employer can say what goes. If you aren’t working while ‘at work’, your employer can discipline you for failing to follow instructions or using work time for personal matters.

But – your employer cannot make decisions about your employment merely because of something that you are (meaning, based solely on the fact that you are a parent). This would be a decision based on your ‘family status’ which is prohibited under the Code. Your employer can make a decision based on something that you do (meaning, based on your conduct). The difference is narrow but important.

Further, as with Question 18, above, if you have children who need care (for example, infants or toddlers), your employer would have to accommodate your needs to perform childcare duties. This may take the form of modified duties, hours, or schedules.

For Members of a Union

19. My employer has closed down and I’m a member of a union – what are my rights?

You rights are substantially the same as the rights of any other employee in Ontario, except that you may have more rights under your collective bargaining agreement. Talk to your Shop Steward or Local Union Rep to learn about how your rights differ.

For Individuals and Households that Receive ODSP

20. I’ve been laid off and need to apply for E.I., but I’m part of a household that receives ODSP. How is this going to affect my/our ODSP payments?                                                                                          Updated March 30, 2020:

As a general rule with E.I., when earning employment income, ODSP deducts $1 of ODSP income for every $2 of employment income (this is called a 50% ‘clawback’). With E.I. income replacement benefits, for $1 of E.I. income you receive, $1 is deducted off of your ODSP income (this is called a 100% ‘clawback’).

At this time, it is not clear if the Canada Emergency Response Benefit (CERB)* announced by the federal government will be clawed back at a 100% or otherwise, but assume it will be.

For Individuals with Mental Health Concerns

21. My employer is still open and I’m expected to be at work but I’m terrified and my mental health is suffering – what can I do? What are my rights? Does my employer have to accommodate me?

Per Section 2 of the Ontario Human Rights Code, if you have a genuine disability, your employer must accommodate you up to the point of ‘undue hardship’. Disabilities can be either or both physical and mental/psychological. Your employer also cannot use your disability as a reason to terminate your employment – this would violate sections 5 and 9 of the Code. However, this disability must be a ‘genuine’ disability – meaning, a doctor or other health care professional has determined that you have a disability. Fear and anxiety about the COVID-19 alone may not be enough to establish that you have a disability.

If your mental health is suffering, you should seek advice from a health care professional. If a health care professional places you under their care or imposes restrictions on you, your employer must accommodate you up to the point of ‘undue hardship’. As a reminder, an employer has the right to participate in determining the accommodation and may request sufficient medical documentation to enable them to come to a decision. Employers are not entitled to know if you have a diagnosis. Employers must keep your health information private and confidential. Strict privacy laws protect your personal health information.

For Self-Employed Individuals

22. I’m self-employed and I can’t make ends meet – what are my options?                                      Updated March 30, 2020:

Your options are substantially the same as a laid off or terminated employee – like many other workers out of work, you may have to apply for E.I. benefits to replace your lost income in order to make ends meet.

The federal government also announced that self-employed persons who have lost work or income due to COIVD-19 who do not qualify for regular E.I. benefits would likely qualify for the “Canada Emergency Response Benefit (CERB)*“. The application for this benefit will be available in April 2020.

A link to E.I. benefits website is at the bottom of this article.

For Small Business Owners

23. I’m a small business owner and I can’t afford to keep running my business – what should I do to take care of my employees?                                                                                                                        Updated March 30, 2020:

You can apply for a payroll subsidy of up to 75% per employee for up to 4 months. The application for this subsidy is not open as of the time of writing this article, but should be available soon.

In the meantime, if things have come to a point where you cannot keep operating and cannot wait for the subsidy (or don’t feel that the subsidy will make a substantial difference), you have a few options for your employees and for yourself:

1.  Place everyone on Vacation. This requires that you continue paying your employees, but only             their vacation pay. You may do this without the employees permission. This is also only a very           short-term measure.
2.  Temporarily Lay-Off everyone. Approach your employees about agreeing to a temporary lay-off.        If your employees agree to take a temporary lay-off, you must continue to pay their benefits.              Remember to give them their Records of Employment (“ROEs”) within 5 days of their last                    working day. They will need it to apply for E.I. benefits. Remember also that you must recall                them to work within 13 weeks of the lay-off commencing or else the employees will be                        considered terminated permanently.
3.  Permanently Lay Off (or terminate) your employees. This will require you to pay them                          termination pay and severance pay where appropriate.

24. I own a small business and we’re suffering – what can I do?                                                        Updated March 30, 2020:

There are programs that have been announced by both the federal and provincial government. Programs for small businesses are still making their way through both sets of government and so the applications do not exist yet. In the meantime, the federal government has provided the following stop-gap measures:

1. Canada Emergency Business Account (Loan). The government of Canada will provide interest-free loans of up to $40,000 to qualifying small businesses. To qualify, these organizations will need to demonstrate they paid between $50,000 to $1 million in total payroll in 2019. Repaying the balance of the loan on or before December 31, 2022 will result in loan forgiveness of 25 percent (up to $10,000). Small businesses and not-for-profits should contact their financial institution to apply for these loans.
2. Payments of corporate and personal income taxes have been deferred until the end of August 2020. See here for more details.
3. Make more credit facilities available through three major financing institutions. Credit facilities are being offered by the Business Development Bank of Canada, Export Development Canada and Department of Finance Canada.

Programs Available for Laid Off Employees and Self-Employed Persons

General details about federal government programs can be found here.

Details from the CRA about the deferred tax filing deadline and deferred tax payments can be found here.

Details about deferring mortgage payments can be found here.

Details about deferred student loan payments can be found here.

To apply for Regular E.I. Benefits, go to this website.

Details about the Canada Emergency Response Benefits (CERB)* can be found here. To apply for these benefits in April when they become available, go to this website.

*Note: This benefit replaces the previously announced “Emergency Support Benefit” and the “Emergency Care Benefit”, which were announced during the week of March 15, 2020.

Programs Available for Sick or Quarantined Individuals

Details about the special rules for E.I. Sickness Benefits during COVID-19 can be found here.

To apply for Regular E.I. Sickness Benefits, you can visit this website.

Afterwards, you can apply to have the one-week waiting period waived by calling the government’s toll-free number at 1-833-381-2725, or teletypewriter at 1-800-529-3742.

Programs Available Small Business Owners

 

Details about the 75% payroll subsidy can be found here.

Details about the Canada Emergency Business Account (Loan) can be found here.

Details about access to other credit facilities for businesses can be found here.

Details about other resources for small businesses can be found here.

Please be advised that the above is not meant to constitute or replace legal advice. It is merely legal information meant to assist and guide you through these times. For more information or to discuss your specific circumstances, please contact KPA Lawyers by requesting a call back or booking a telephone consultation. KPA Lawyers is open for business but our physical office is closed to the general public on a walk-in basis at this time until further notice.