For employers who need support with key questions on prevailing issues at this difficult time. We’ve covered some key points below:
For Employers with employees who are taking a disability leave due to being medically affected by COVID19 (Symptoms, treatment etc), or a Public Health order, your existing disability processes as outlined in your group benefits plan, will apply. Note that there may be changes to disability adjudications due to the prevailing scenario, so please consult your specific group plan for details (Call or email us if you need support). In the absences of an existing STD/WI process you would issue a ROE and the employee can apply for EI sickness benefits.
If your employee feels that the workplace is not safe (infection risk in workplace or due to travelling to work in public transit) but does not have any medical issues and there is NO requirement for them to self-isolate, You can try to be flexible and accommodate as much as possible during this crisis – try implementing a work from home protocol if available and possible (role specific). Under the OHSA (Occupational Health & Safety) Ontario, you can conduct an investigation to objectively identify the risks the employee has stated, (Note that there is significant grey area in the prevailing circumstance as the Federal Govt. and PHAC (Public Health Agency of Canada) is advising everyone to stay home if possible, but provincially there is no requirement yet to close all businesses). If there is no risk, you can tell the employee to come to work but if they refuse, you can contact the Ontario Ministry of Labour for guidance or additional review of the situation.
Employers with employee(s) who wishes to stay home to care for a sick family member they can avail of the following job protected Leaves of Absence available to them – New (as of March 19/2020) Job Protected Leave due to Infectious Disease Emergencies, Family responsibility leave, Family caregiver leave, Family medical leave, Critical illness leave (clickable links to respective leaves) . These leaves of absence are unpaid and the employer can issue an ROE so they can apply for EI.
In relation to the above point, please note that there is now a new “Emergency Support Benefit” that the Federal Govt. has announced for people(employees) who may not otherwise qualify for EI.
Employers can reasonably require an employee advise them if they have been in close contact with someone diagnosed with COVID-19 or if they have travelled outside of Canada. Employers can apply the Government of Canada statement that anyone who returns to Canada from overseas, must self-isolate and stay at home for 14 days. Employers can also reasonably require an employee to advise if they have been diagnosed with COVID-19. Notwithstanding Human Rights legislation, in the present circumstances and in consideration of the Employers obligation to the workplace under OHSA Ontario, it is reasonable to require proactive disclosure due the risk of infection transmission. In these scenarios, employees who are in quarantine can avail of short-term disability benefits or WI, if eligible/available, or the EI sickness benefit as eligible. (Also note the new “Special Emergency Benefit” mentioned above as applicable.)
There is no legal obligation for employers to continue to pay employees if they are unable to attend work due to illness or quarantine, unless a workplace policy or collective agreement (CBA) states otherwise. The employee can avail of short-term disability benefits or WI, if available, or the EI sickness benefit as eligible. (Also note the new “Special Emergency Benefit” mentioned above as applicable.)
In most of the above scenarios, the employer sponsored Group Benefits Plan would be in place and in effect, as it is typically in effect for any job protected Leave of absence (Provided premiums are being paid). This is a valuable tool for employees in this time of uncertainty and from an employers perspective, shows partnership and support to your employees. The Govt at both federal and provincial levels have announced supports for job protection during this unique situation, but what unfolds over the next few days/weeks will shed more light on any new govt. supports and directives.
There is also a program to support employers/businesses that are facing revenue losses and to help prevent lay-offs, the government is proposing to provide eligible small business employers a temporary wage subsidy for a period of three months. The subsidy will be equal to 10% of remuneration paid during that period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer.
If you intend to perform a temporary layoff, note that currently, employers do not have the unequivocal right to enact a layoff unless it has been previously stated/outlined in employment agreements and/or company policies that have been acknowledged by employees. Enforcing a temporary layoff without a previously stated right may result in wrongful/constructive dismissal claims against the employer. You may still be able to enact the layoff if you have a (documented) agreement with your employees in question to do so. (contact us if you need a template or guidance on this.) Once you have the necessary agreements in place the temporary layoff will have to be operated in accordance with ESA guidelines.
In an effort to alleviate lay-off situations Employers can consider the the Federal Govt. Work-Sharing (WS) program. This is an Employment Insurance (EI) program that helps employers and employees avoid layoffs when there is a temporary decrease in business activity beyond the control of the employer.The program provides EI benefits to eligible employees who agree to reduce their normal working hours and share the available work while their employer recovers.The goal of the program is for all participating employees to return to normal working hours by the end of the agreement.The employer and the employees (and the union, if applicable) must agree to participate in a WS agreement and must apply together. It is important to understand the WS program eligibility before applying. Please read all the information provided in this document and discuss it with your employees by providing them with the Employee Guide.If this program is not feasible or if employees just want to stay home as a precaution they may be eligible to apply for the newly announced Emergency Support Benefit outlined above.
For unionized workplaces, please refer to your collective bargaining agreement (CBA) for specific guidance on employment related topics (including layoffs & termination)) if it exists. If none exist, you may apply standard ESA covered protocols as applicable. It is always best to engage your union/reps to work out a workplace plan that makes sense during these unique times.
Please feel free to review our previous blog on Government support for employees and Employers – https://www.tebco.ca/blog/2020/3/19/government-support-for-employers-amp-workers-during-covid-19-crisis
On March 19, 2020, the Ontario government enacted amendments to the Ontario Employment Standards Act, 2000 (the “ESA”) allowing employees to take unpaid, job-protected leave for various reasons related to a designated infectious disease, such as COVID-19.
Read more about this from Christopher McClelland’s article on March 20, 2020 here. Blaney McMurtryLLP
A link of The Conference Board of Canada’s webinar from March 19, 2020. View video here.