Employer Rights and Responsibilities During COVID-19 Pandemic

Many clients have called or e-mailed Kutner Law LLP as to temporarily laying off employees during the Coronavirus crisis. We have a close relationship with Paul Martin of the law firm of Matthew Wilton & Associates who assists us with our more difficult labour law questions.

Paul Martin has prepared a memorandum that deals with some of the questions in regard to your employees that may arise in the next while including temporary lay off. In addition, if you temporarily lay off employees you will have to deliver them a written letter and prepare and deliver to them a record of employment in order that they would be able to obtain employment insurance.

MEMO

To: Ontario Employers

Date: March 13, 2020

RE: Employer Rights and Responsibilities During COVID-19 Pandemic

This memo is designed to answer the most common questions employers are asking in respect of the recent COVID-19 outbreak.

Note that this document is intended as a general source of information only. In dealing with any particular workplace or employee the appropriate approach to any particular situation may vary. It is important that employers seek legal advice before implementing new workplace policies.

What responsibilities does an employer have regarding the outbreak?

Employers’ obligations related to COVID-19 are captured by the Occupational Health and Safety Act, which requires that employers take all reasonable measures to protect their workers from workplace injury and disease. That includes the requirement to take whatever measures are reasonable to minimize the risk of COVID-19 transmission in the workplace.

Health care providers and other employers may also have separate professional and legal obligations to their patients and customers to minimize the risk of COVID-19 transmission.

What measures can employers implement to minimize the risk of infection?

Employers can take a few simple, straightforward measures to reduce the spread of COVID-19 transmission.

Employers should encourage workers to wash and sterilize their hands frequently. It is advisable to provide appropriate sanitary resources, such as hand soap and hand sanitizer. Employers should also encourage their workers to take hand washing breaks as required.

Employers should attempt to reduce the likelihood that employees will end up in large mass gatherings. Conference and other business travel should be kept to a minimum.

Employers should also maintain an atmosphere where, if an employee is feeling ill, they can stay home without risk of repercussions. As noted below this does not mean they must be paid for that time. However, employees should feel that if they are ill, they can stay home from work and return once they are in better health.

Employers should also keep up on developments with regards to best practices to control the risk of transmission and infection. The Centres for Disease Control maintains an up-to-date page on best practices for employers at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-businessresponse.html. In addition, the Ontario government maintains an up-to-date page on
current developments at https://www.ontario.ca/page/2019-novel-coronavirus.

Note that these websites are not legal information or advice, and the implementation of their recommended practices should only be undertaken after legal advice has been obtained.

What can an employer do if an employee appears symptomatic?

Employers have a proactive obligation to maintain a safe workplace. This obligation includes the need to make reasonable inquiries about worker health and take action if required.

If an employer has observed that an employee appears to be symptomatic, they may make inquiries to satisfy themselves that the employee is not a potential carrier. That may include asking about symptoms (such as fever or coughing) and whether the employee has been exposed to a carrier.

If the employer has reason to believe that an employee is a potential carrier, they can take reasonable measures to protect the workplace. That may include asking or instructing the employee to self-quarantine and not report to work for whatever period of self-quarantine is recommended at the time by public health authorities (currently 14 days).

However, ordering an employee home if there is not a reasonable basis to do so could constitute a constructive dismissal. Prior to requiring any employee to self-quarantine, employers should seek legal advice.

If an employee has to self-quarantine or is sent home, are the entitled to pay?

Absent a unique contractual provision, an employee who is in self-quarantine or who is sent home due to a reasonable risk of being a carrier is not entitled to pay unless they
are working. In some cases, employees may be able to work remotely. If so, they are entitled to pay for the time that they work remotely.

If employees are unable to work remotely, then the employer is not required to pay them for their time. However, any group benefits should be continued during their self-quarantine period. In addition, such employees should be encouraged to apply for Employment Insurance, as the waiting period for employees in self-quarantine has
recently been waived.

Can employers institute a general travel ban?

Note that in all likelihood employers cannot ban an employee from travelling such that the employee would be at risk of discipline if they did travel. However, some employers may wish to impose mandatory self-quarantine for any employees who have travelled within the transmission period (currently understood to be 2 weeks).

There is a risk that a general travel ban could be perceived as heavy-handed by adjudicators, and that the forcible removal of employees who have travelled from the workplace could constitute a constructive dismissal. As more information becomes available and governmental recommendations are issued, it will become more clear whether a travel ban is appropriate.

If an employer sends an employee home due to a risk of infection, are they at risk of a human rights complaint?

So long as the reason for an employee to be sent home is due to a reason grounded in evidence, such as the observation of symptoms or recent travel to a hotspot, the risk of an infringement of the Human Rights Code is marginal.

The most likely instance of discrimination will likely arise when an employer’s determination of an employee’s risk of transmission is based in part on an employee’s perceived ethnicity or country of origin. This may arise because an employee is perceived to have a connection to a particular country which has been particularly impacted by the current COVID crisis. It is important to avoid such stereotyping in determining whether an employee represents a risk of transmission.

That is not to say that an employer may not make inquiries about an employee who has recently returned from a so-called “hot spot.” An employer may reasonably inquire about an employee’s travel history, provided those inquiries are targeted at determining whether the employee may need to self-quarantine. Such inquiries are not discriminatory or contrary to the Human Rights Code, and may be an important mechanism for implementing proper safeguards.

If business is disrupted, can an employer reduce its workforce until business returns to normal?

The Employment Standards Act, 2000 permits employers to lay-off employees for periods of up to 13 weeks before the lay-off is considered a dismissal. Laid off employees are not paid, and may be recalled once economic circumstances permit. However, employee benefits must be continued through a temporary lay-off.

However, individual employment contracts may restrict the employer’s right to lay employees off temporarily, even in the case of a COVID-19 related emergency or shutdown. It is critical that prior to implementing any lay-offs, employers consult an employment lawyer to discuss the risks associated with such an action.

If a temporary lay-off extends past 13 weeks, there is a significant risk that it will constitute a dismissal, which could result in an employee being entitled to termination pay and, if applicable, common law notice. Again, prior to exceeding that threshold it is important to speak to an employment lawyer to assess the risks associated with the situation.

What happens if employers reduce an employee’s hours as a result of a shutdown?

In general, employers have the right to vary an employee’s hours to a reasonable extent, including reducing their hours. If an employee’s hours are reduced significantly, however, it is possible that such a reduction could constitute a wrongful dismissal. Whether or not current circumstances could change that analysis has not yet been determined by a court.

If an employee’s hours weekly earnings are reduced to 60% or less of their regular weekly earnings, this constitutes an interruption of earnings which requires that the employer file a Record of Employment with Service Canada. The ROE must be filed even if the employee continues to work part-time.

Employees who are working part-time may still be entitled to Employment Insurance benefits, although the amount of those Employment Insurance benefits may be reduced. For each dollar an employee earns from another source up to 90% of their previous earnings while receiving Employment Insurance benefits, their EI entitlement is reduced by 50 cents. Any compensation received above 90% reduces the employee’s EI entitlement on a dollar-to-dollar basis.

As noted above, the waiting period for EI has been waived during the current COVID-19 crisis.

The current COVID-19 crisis remains fluid, and the information contained herein may become outdated as further developments occur. It is important that, before taking any significant action, employers consult with legal counsel to ensure they are on solid legal  footing.

If you have any questions or need any assistance during this time, please contact:

Paul J. Martin
T: 416.860.9989
E: pmartin@wmlitigation.com

Matthew Wilton
T: 416.862.5594
E: mwilton@wmlitigation.com