Short Answers to COVID-19 FAQs as it Relates to Employment Law

Short Answers to COVID-19 FAQs as it Relates to Employment Law

 

      1. Can I stay home from work to care for a child or other family member due to COVID-19?

As we go through the different stages of Covid-19, some employees may need to stay home to care for a family member due to Covid-19. This might be because they have an elder parent to care for or schools and daycare centres have been closed due to Covid-19.

Employees that find themselves in this situation may use their vacation time, sick days (depending on their employer’s sick leave policy) or use their 3 sick unpaid days a year that is guaranteed by the Employment Standards Act (ESA).

    Employees Caring for Children or Parents

If you determine that you have to stay home because you are caring for your child(ren) or parents, you can either ask your employer for accommodation (under the Human Rights Code) which may allow you work from home or you can take the unpaid Infectious Disease Emergency Leave.

    Accommodation under the Human Rights Code

It may be discrimination under the Ontario Human Rights Code if your employer refuses to provide you (the employee) with a family status-related accommodation. This is because the Code protects individuals from being discriminated against because of their family status. This family status is only subject to a relationship between parents and children.

Hence to avoid a claim of discrimination under the Code, your employer would need to provide you with accommodation to the point of undue hardship. There is no one definition for undue hardship as this is determined on a case-by-case basis. A non-exhaustive list of accommodation that your employer may provide are;

  • Change your work schedule
  • Let you work from home
  • Let you leave during the day (or night depending on your need) to allow you to provide medication to a parent or child etc.

Accommodation under the Code can be complicated, and legal advice is recommended to requesting for and providing accommodations. Call Makenzie Law today to advise you on your right as an employee and your duties as an employer to provide your employee with accommodation. We offer employers and employees free consultation.

    Infectious Disease Leave

If you would rather not ask your employer for accommodation under the Code or if for whatever reason your employer cannot accommodate you, your other option is taking the (unpaid) Infectious Disease Leave. 

You can take this leave to care for your child if you choose not to send your child to school or daycare because you are worried that your child will be exposed to COVID-19 or if your child’s school or daycare is closed due to COVID-19. If, however you decide to take this leave to care for a family member, your employer can ask for “reasonable” proof. For example, they can ask you for a note or email from your daycare provider or school saying that they had to close due to COVID-19. 

Note that there is no limit to the number of days that you can take the Infectious Disease Leave (but this leave will only be available until for example your daycare or school opens back up after a Covid-19 outbreak). You can decide to use it twice a week or every other week depending on your needs. If you decide to choose this option, remember to inform your employer of this decision as soon as possible.

      2. Do I have to get a doctor’s note if I’m sick because of COVID-19?

    Ontario Employees

No, you do not need to provide your employer with a doctor’s note because the Ontario government has announced that workers affected by COVID-19 won’t have to give their employers a medical note or doctor’s certificate in order to take sick leave from their jobs.

    Federal Employee

The federal government also announced that workers who are quarantined or sick from COVID-19 will not need a medical certificate or doctor’s note to apply for Employment Insurance sick benefits

The combined effect of the Ontario and federal government announcement is that Ontario and federal workers need not provide their employers with a doctor’s note if they take a sick leave due to Covid-19.

      3. I have COVID-19. Can I take time off work?

If you have COVID-19, you can take time off work through your employer if you have vacation time or paid sick leave. Under the Ontario Employment Standards Act, you can get at least 3 sick unpaid sick leave if you do not have vacation time or paid sick leave. This sick leave may only be paid if your employment contract states so.

Further, during COVID-19, you can take the new unpaid leave under the Infectious Disease Emergency Leave for as long as you have COVID-19. You can use this leave even if you have paid sick leave. If you do, this will keep you from using your sick days when you don’t need to.

Note that your employer cannot fire you or punish you if you have been ordered by a public health professional to stay home while you wait for your test results, or because you must self-isolate for 14 days. Therefore, you have the right to the unpaid Infectious Disease Emergency Leave until you are told you can return to work. There is no limit on the number of days for this leave and you can take this leave as many times as you need to, but you can take this leave for only as long as you need to. All you are required to do is tell your employer that you are taking this leave because of COVID-19. If possible, it is best to do this before you start taking the leave. 

While you have the right to take this COVID-19 leave, your employer also has the right to ask for “reasonable” evidence. For example, they could ask for proof such as a copy of an order from public health saying you must self-isolate if you got a copy of the order. But your employer cannot require you to give them a doctor’s note. Most times, this means that your employer will only be able to ask you whether you are sick. And they must accept your answer.

      4. I am worried about going to work because of COVID-19. What can I do?

Employees may be worried about returning to the workplace because of the risk of catching COVID-19 because they may have a weak or compromised immune system. In this situation, the employee has two options, you can ask your employer for accommodation, like being allowed to work from home or in a safer workspace or you can take the unpaid Infectious Disease Emergency Leave.

Note that it is not enough to say that you want to stay home because you are afraid of catching COVID-19. But there are some situations where you can stay home but if you have to stay home to care for a family member, you have a few options such as taking your vacation time, if you have any sick days, if you have them and depending on your employer’s sick leave policy, if you don’t have paid sick leave, the Ontario Employment Standards Act says that you get at least 3 sick unpaid days a year. In addition, see question one above for other options. 

      5. Can my employer make me take a COVID-19 test?

There is no one answer to this question but in Ontario, mandatory COVID-19 testing has been found reasonable in an Ontario care home. Therefore, whether mandatory testing can be enforced by your employer will be determined on a case-by-case basis. In this care home situation, the Arbitrator applied the well-settled arbitral principles around the establishment of workplace rules by weighing the privacy intrusion of the members/employees against the safety benefits and goals of the policy mandating its employees to take the COVID-19 test. The Arbitrator found that the policy was reasonable citing the rate of transmission and the gravity of risk of death to residents from a COVID-19 outbreak in a care home. In addition, the Arbitrator found that the privacy intrusion was sufficiently mitigated with biweekly testing and was outweighed by the risks of COVID-19 transmission in an elderly population.

Therefore, in Ontario, employers can mandate their employees to take the COVID-19 test if it is reasonable after considering the privacy right of the employee against the safety benefit of the workplace especially considering the novelty and infectious nature of COVID-19. The decision may have been different were the policy implemented in a setting where staff were not working with elderly, vulnerable residents, and it may have been different if it was decided at a time in the pandemic when cases were stable or in decline.

      6. Can my employer make me sign a form saying it’s not their fault if I get COVID-19?

The short answer is no because the Occupational Health and Safety Act provides that employers must ensure that their workplace is safe. To do this, for example, employers must give employees information, training, and supervision and employers must do everything that they reasonably can to ensure a safe workplace.

An employer and employee cannot decide that they won’t follow the law. This means that an employer cannot use a waiver to get out of their duties to keep the workplace safe. Also, note that an employee has the right to refuse to do work that he/she think is dangerous or unsafe.

If your employer is not dealing with the problem, contact the Ministry of Labour to have them investigate the dangerous/unsafe work situation.

      7. Can my employer make me use vacation time during COVID-19?

In Ontario, your employer can decide when you take a vacation unless your employment contract states otherwise. Therefore, an employer in Ontario can refuse an employee’s request for vacation time during the coronavirus pandemic even when the province is not experiencing a pandemic situation. 

Hence, an employer can ultimately determine when an employee can take vacation time off work. outside of a few exceptions which are your employer cannot prevent you from using your vacation during the vacation entitlement year. This particular one-year period starts from the date you are hired and starts anew after a period of twelve months.

It is worth noting that if your employer says that you must take your vacation during the COVID-19 outbreak, they must pay you for this time.

      8. Can employers require employees to work from home?

Yes! Employers have a right to ask employees to stay home from work if they meet the publicly available risk criteria such as situations where the employee have symptoms of COVID-19, have recently travelled to an area that is the subject of a PHAC travel health notice (or on a cruise ship) or has been exposed to someone with the virus. 

Note that employers must ensure they are not basing requests to stay home on legally prohibited discriminatory grounds such as ethnicity or place of origin.

      9. Can employers require their workforce to work remotely?

Generally speaking, employers cannot make significant unilateral changes to the terms of an employee’s employment without triggering a risk of constructive dismissal, but in light of COVID-19, there may be circumstances in which it is reasonable for an employer to require a portion or all of its workforce to work remotely as long as employees are continuing to perform their usual duties out of the office, and they are still entitled to their usual pay and benefits.

      10. I don’t want to go to work because of COVID-19. Can my employer fire me?

Your employer cannot fire you for having COVID-19. This would go against the Human Rights Code that protects everyone from discrimination because of a disability. On the other hand, if you do not have COVID-19, and your employer remains open for business, your employer may be able to terminate you for not coming to work.

Also note that under the Ontario Employment Standards Act and the common law, employers generally have a right to terminate their employees without cause at any time and for any reason, subject to the provision of an appropriate notice of termination, pay in lieu and severance pay (if applicable). If an employer suffers financial hardship due to the COVID-19 outbreak, they may be permitted to terminate their employees without cause. Employers are cautioned to proceed with care to ensure that the terminations cannot be perceived to be based on any prohibited ground of discrimination (including disability) or related to an employee’s request to take a sick leave in connection with COVID-19. 

To protect yourself from being fired, there are situations where you may take an unpaid leave.

  • If you are sick with COVID-19
  • If you are caring for a family member who is sick with COVID-19
  • If you have been ordered to quarantine or isolate
  • If you are in isolation, self-isolation, or quarantine because of information or directions from the Ontario government, Telehealth Ontario, a medical practitioner, including a doctor or nurse, a municipality, or the Canadian government. Not that you can also take the Infectious Disease Emergency Leave discussed in question 1, 2, 3 and 4 above.
      11. Can my employer lay me off temporarily because of COVID-19?

Employers may be able to temporarily lay off all or some of their workforce to deal with the temporary closures of business or to ameliorate financial difficulties caused by the COVID-19 epidemic. Employment standards legislation across the country gives employers a right to temporarily lay off all or part of a workforce for a period of time without triggering a termination. However, there is case law that suggests that a temporary layoff without pay may amount to constructive dismissal in the absence of a contractual right to do so. In this case, the employee could be entitled to severance pay.

      12. Can my employer lay me off permanently because of COVID-19?

A layoff is when an employer cuts all of a worker’s hours because there’s no work for them to do. Layoffs can be permanent or temporary. Since the pandemic, many laws and rules have been changed by the government of Ontario to reflect the current economical crisis that has affected most of the world. One of this change is the emergency Order issued that changed the rules for layoffs caused by COVID-19.

Prior to this emergency order, employers can permanently lay off their employees, but they are required to pay the laid-off employee termination pay if the worker has been employed for more than 3 months and was not terminated for misconduct. 

However, since the coming into force of the government of Ontario emergency order affecting layoffs, as of March 21, 2020, your employer can cut your hours to zero without it counting as a layoff. This rule only applies if your hours have been cut because of COVID-19. Instead of being “laid off”, your employer will put you on an unpaid “emergency leave” which means that you cannot go to the Ministry of Labour to make your employer give you termination pay. Note that your employer does not have to pay you when you are on an unpaid emergency leave and your employer can keep you on emergency leave for up to 6 weeks after the end of the COVID-19 emergency in Ontario. In addition, your employer does not have to pay your benefits, unless they were already paying them on May 29, 2020.

      13. How does constructive dismissal work during COVID-19?

In an effort to mitigate the losses that employers are experiencing due to COVID-19, the government of Ontario made an emergency order (as in the case of layoffs above) that changed the rules for constructive dismissal caused by COVID-19. As of March 21, 2020, an employee cannot claim constructive dismissal based on the Employment Standards Act for temporary cuts to their pay or hours of work because of COVID-19. In this situation, an employee will be said to be on a “deemed emergency leave”.

These changes will last until January 3, 2021. This indicates that after January 3, 2021, an employee in the above situation will no longer be on a deemed emergency leave. These changes only apply to the rules in the Employment Standards Act. You can still go to court to claim constructive dismissal for changes to your job that happened before January 3, 2021.

Call Mackenzie Law today if you have questions about the impact of COVID-19 as it relates to your employment. We offer employers and employees free consultation.

Disclaimer: The contents of this blog is intended to provide a general guide on the subject matter and is not a substitute for legal advice. A lawyer should be consulted for your specific circumstances.

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