ICAN | Update on Covid-19 and employment law issues
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Update on Covid-19 and employment law issues

Update on Covid-19 and employment law issues

‘Changes to Employment Standards Act, 2000
 
The Ontario government has announced changes to the Employment Standards Act, 2000 (“ESA”). I have attached a government Press Release on the amendments. Most, but not all, Ontario employees are governed by the ESA. The amendments aim to protect employees off work for virus related reasons.
 
Occupational Health And Safety
 
The Occupational Health and Safety Act (“OHSA”) requires that employers take every precaution reasonable in the circumstances to protect their employees. If you believe that an employee is in a contagious state with the virus, it may be necessary to ask the employee questions to determine what risk they pose to other workers. There is risk in taking this approach, as employees are not normally required to disclose a specific diagnosis. Employers can be subject to human rights complaints, union grievances, and, in some circumstances, privacy complaints, for making such enquiries. However, providing the questioning is minimal in nature and otherwise reasonable, it may be seen as required for health and safety reasons during the pandemic.
 
The Ontario government has announced that anyone who has travelled outside of Canada should self-isolate for 14 days when they return. In order to comply with your OHSA obligations, employers should direct a worker who has travelled outside of Canada to self-isolate at home for 14 days.
 
Sick Pay
 
You should explore whether it is possible to have employees returning from travel outside of Canada, or who are otherwise unable to attend the office or plant due to virus concerns, to work remotely from home and maintain his or her pay. You could also consider letting such workers use their vacation pay while absent. If that is not possible, you must review individual employment contracts, company policies, and your historic practice to determine whether you must pay workers on sick leave. There is no statutory obligation to grant workers sick pay.  
 
In addition to the added protections included in the ESA amendment described in the attachment, the law also grants employees entitlements to unpaid sick leave in certain circumstances. If a worker has been with you for at least two weeks, the ESA provides for three days of unpaid leave each year due to personal illness, injury or medical emergency. Employees also have an entitlement to family responsibility leave of up to three unpaid days leave a year because of an illness, injury, medical emergency or urgent matter involving a close family member. The Human Rights Code further protects workers against discrimination on the grounds of disability and family responsibility, which may be applicable.
 
Employment Insurance and Disability Benefits
 
If an employee is sick with the virus and “quarantined”, he or she can apply for up to 15 weeks Employment Insurance disability benefits through Services Canada. Furthermore, the federal government has just announced that employees directed to self-isolate by their employer without pay, are entitled to apply for the same 15 weeks disability benefits. The government has also announced that that it has waived the need to provide a medical note to Services Canada in order to get the benefits and eliminated the one week exclusion period for disability benefits.   
 
The federal government just announced this past week that it will introduce a new emergency support benefit to help workers who are otherwise not eligible for Employment Insurance who are facing unemployment because of the virus. This benefits plan, and how it operates or is applied for, still has to be finalized. You should direct workers to Services Canada if they are off work related to the virus.
 
Refusal To Work
 
You may encounter circumstances where workers refuse to work in an office or plant because of concerns that other workers may be sick and contagious. The OHSA has a procedure in place for dealing with these situations. Employers must first investigate the situation in the presence of a health and safety representative. The employer must then consider the refusal to work. If the matter cannot be resolved between the parties, you must then notify a Ministry of Labour inspector who will investigate. You cannot threaten to discipline the worker for refusing to work. This can lead to fines.
 
Workplace Safety and Insurance Board
 
If a worker claims to have caught the virus in the course of employment, he or she might be eligible for benefits from the Workplace Safety and Insurance Board. If the worker claims he or she caught the virus at work (or you believe he or she caught it at work) and the worker has sought medical attention, or lost work time, you should file a Form 7 Report with the WSIB.
 
Human Rights Code
 
The virus issue raises human rights concerns as well.  As referred to earlier, the Human Rights Code prohibits discrimination against workers on the basis of disability or perceived disability and family status. There are also concerns about workers being harassed or discriminated against on the basis of their race related to the virus. When handling virus related matters, it is wise to be cautious. It is in your best interests to try and accommodate employees as far as reasonably possible in today’s environment.
 
Lay Offs
 
At law, there is no automatic right of an employer to lay-off a worker even during a pandemic. In some circumstances, employees can claim that the lay-off is a constructive dismissal or dismissal, allowing them to claim pay in lieu of common law reasonable notice. You can lay off workers legally if your employment agreements state that employees may be laid off. The ESA provides that employees can be laid off temporarily for a period of up to 13 weeks without an obligation to pay ESA termination pay or severance pay. At the expiry of the temporary lay-off, if the worker has not been returned to work, he or she is deemed terminated and is entitled to ESA termination pay and severance pay entitlements. The temporary lay-off period can be extended up to 34 weeks in certain circumstances, including where the employer continues making payments to maintain benefits for the laid off workers during the lay-off.’