COVID-19 Leave Now Available for Employees in Ontario + legal and hr advice for employers dealing with COVId-19

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.

Government Support for Employers & Workers during COVID-19 Crisis

From an Ontario Government Standpoint

Written by Yafa Sakkejha

The provincial government has announced its intention to introduce legislation that, if passed, would immediately provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures.

The proposed legislation would, if passed, provide job protection for employees unable to work for the following reasons:

• The employee is under medical investigation, supervision or treatment for COVID-19.

• The employee is acting in accordance with an order under the Health Protection and Promotion Act.

• The employee is in isolation or quarantine.

• The employee is acting in accordance with public health information or direction.

• The employer directs the employee not to work.

• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

The proposed legislation would also make it clear that an employee will not be required to provide a medical note if they take the leave.

The measures would be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

More info on this – https://news.ontario.ca/opo/en/2020/03/premier-ford-announces-job-protection-for-workers-during-the-covid-19-situation.html

You can also Download a printable text copy of the message from the Premier’s Office

From a Federal Government Standpoint

NEW – Announced on March 18th 2020:

• Prime Minister Justin Trudeau has announced a $82-billion aid package to help Canadians and businesses, including income supports, wage subsidies and tax deferrals amid the global COVID-19 pandemic.

• Canada and the U.S. have agreed to close theeir border to non-essential travel.

• Workers who don’t qualify for employment insurance (EI) can apply to receive the just announced Emergency Support Benefit of up to $900, bi-weekly, for up to 15 weeks.

• Applicants can include those who are placed in quarantine or have to self-isolate, those who are ill with the coronavirus infection, and those who must stay home to care for someone with COVID-19.

• The program is also for those who must stay home from work to care for children and those who are without paid sick leave or similar workplace accommodation.

• The federal government will provide up to $27 billion in direct support to Canadian workers and businesses, plus $55 billion to meet the liquidity needs of Canadian businesses and households through tax deferrals to help stabilize the economy.

• The response plan includes longer-term income support for Canadians who lose their jobs or face reduced hours as a result of COVID-19’s impact.

• More details pertaining to the above will be unveiled over the next few days.

Employment Insurance (EI) – Employers with COVID-19 Affected Employees Can Consider The Following: 

If your company does not have paid sick/personal emergency leave days to cover employees with potential symptoms for the self-Isolation period, you could issue an ROE so they can claim EI sickness benefits. Note there is a special toll free number that is set up to handle these cases.

For eligible claimants who are unable to work because of illness, injury or placed in COVID-19 quarantine, Service Canada is ready to support with the following actions:

• The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined so they can be paid for the first week of their claim.

• Establishing a new dedicated toll-free phone number to support enquiries related to waiving the EI sickness benefits waiting period.

• Priority EI application processing for EI sickness claims for clients under quarantine.

• People claiming EI sickness benefits due to quarantine will not have to provide a medical certificate.

• People who cannot complete their claim for EI sickness benefits due to quarantine may apply later and have their EI claim backdated to cover the period of delay.

Have your employees contact the new dedicated toll-free phone number if they are in quarantine and seeking to waive the one-week EI sickness benefits waiting period so they can be paid for the first week of their claim:

• Telephone: 1-833-381-2725 (toll-free)

• Teletypewriter (TTY): 1-800-529-3742

Refer here for more information on EI sickness benefits due to COVID-19 – https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

For Employers with Employees NOT AFFECTED by COVID-19, But Who Are Unable to Work From Home Due to the Nature of Their Job Functions

• Public Health Authorities have not issued mandatory closure notices for ALL businesses.

• You have the option to review internally and try to apply the Work Sharing Program that has been extended to businesses due to the COVID-19 situation (Typically reserved for certain sectors of industry).

• Work-Sharing (WS) 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.

• More Info here – https://www.canada.ca/en/employment-social-development/services/work-sharing/guide-applicant.html#ha

• 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.

No Other Choices…..

Employers who have no other alternative may be considering conducting a temporary layoff … Please note that this is not an automatic right for employers and a pre-exisiting employment contract/agreement with the employee must have the layoff right for the employer stated clearly. If this is not the case and a layoff is forced upon employees, it may result in a constructive dismissal claim with the ministry of labour (Ontario).

In the absence of layoff rights for the employer stated in a contract on employee acknowledged company policy, the employer may consider drawing up a temporary layoff agreement for impacted employees. This agreement must adhere to  rules outlined in Ontario’s ESA, and must be reviewed and accepted by the employees in question. Once the employer has your employees agreementfor the temporary layoff, it will need to be operated as per the previously mentioned rules.

Please contact us for support on this as necessary.

Final Thoughts –
Please Note that the above information is current as of  noon March 18th, 2020 and may change based on additional measures the federal and provincial govts. might announce in terms of  additional support for Canadians due to the COVID-19 crisis.

Stay Safe. Please feel free to contact us if you need additional support.

COVID-19 / Coronavirus Update 2020

Employees and their eligible dependents affected by the coronavirus can expect their Out-of-Country Medical Emergency, Travel Assistance and Disability claims to be handled on a case-by-case basis, based on plan coverage.

NOTE:  Insurance companies differ in the limitations and exclusion clauses included in the fine print of their benefit contracts:

Most contracts are treating illness due to the Coronavirus as any other medical emergency, meaning there are no exclusions because an individual has travelled to an affected country.  Some policies, however, exclude coverage for expenses incurred for a medical condition contracted in a region where the Government of Canada has issued a travel advisory indicating that you should “avoid all travel” or “avoid non-essential travel”

Regardless of your destination, before heading outside of Canada, you should be familiar with your plan’s coverage.  For the latest information regarding the coronavirus we encourage plan sponsors and plan members to view the Government of Canada’s website:

https://www.canada.ca/en/public-health/services/diseases/coronavirus.html
 

Know what to do if you or an eligible dependent has a medical emergency:

• Call the travel assistance provider number on your card immediately BEFORE seeking medical treatment;

• If that isn’t possible, call as soon as you can so that you avoid issues with coverage of medical costs.

Travel assistance generally includes 24/7 access to travel support representatives. You get access to a coordinator who can recommend a healthcare facility, keep your doctor in Canada informed of your progress, as well as make travel arrangements for you when you’ve experienced a medical emergency while outside of Canada. 

If you must travel, we encourage you to call your insurer to confirm the region you are travelling does not fall under the government of Canada’s Travel Advisory

Amendments to OHIP+ effective April 1st, 2019

The new Ontario government announced, soon after they were elected in mid-2018, that they would be modifying the OHIP+ program to reduce the number of eligible children and youth. Under a redesigned OHIP+, eligible children and youth, who do not have private insurance, would continue to receive their medications, through the program, without co-payments or deductibles. For those children and youth who are covered by private insurance, their drugs will be billed to those plans.  Just as it was prior to the launch of OHIP+, private insurer will be first payor.

Starting on April 1, 2019, Ontarians 24 years old or younger who have private insurance that covers prescription drugs will no longer be eligible for the OHIP+ program. All drug claims incurred on or after this date will have to be sent to their group insurance plan for reimbursement.

Please feel free to contact us to find out who may be eligible for alternate funding sources such as the EAP, what medications are covered and how to get it.