Covid19 Employment Q&A for Employees & Contractors
Residents in the Greater Toronto Area get insights about Covid19 related employment issues.
How we help +
We realize that covid19 has had a devastating impact on many employees in various industries. Many employees or independent contractors have taken severe losses in income. The purpose of this page is to help independent contractors and employees of all levels to better understand how they can legally protect their income or at least mitigate losses. We look at situations where employees have been laid off from work, laid off for much longer than their coworkers, or have been asked to work on reduced wages.
HELPING EMPLOYEES PROTECT THEIR HEALTH AND SAFETY
We also look at the other side of the equation, which is your health. Many employees are asking if they have to wear a mask, if they have to come back to work when they’re scared for their health, as well as whether or not they are legally within their rights to work from home so they can take care of their kids. However if there are additional questions you have that aren’t covered here, please feel free to call us.
HELPING EMPLOYEES PROTECT THEIR INCOME
Many businesses are also experiencing permanent changes to their business models and operations. As a result, lot of employees are concerned and asking us what they should do because they feel like they may soon lose their job. We go over these issues as well, but we try not to go into too much detail because every situation is different and we don’t want employees to take advice that isn’t right for their exact situation. This may cause a lot of problems for them, which is why if you fear that you may be losing your job due to covid, please give us a call so we can look at your unique situation with the attention to detail it deserves.
A. I have been laid off for a long time. Almost all of my co-workers have been called back. I haven't got clear answers from my employer. What should I do?
Since it appears that you won't be hired back, you should sue. Your employer's decision to hire others back - but not you - very likely means that they have decided to end your employment. This means that you are entitled to a package.
You would be wise to take action soon since delaying a lawsuit may undermine your claim. I would expect a defence lawyer for your employer to claim that your delay in suing was proof that you accepted the lengthy lay-off.
B. My boss expects me to return to work at the office as soon as school starts for my two children. But I am not sure in-person classrooms are safe for them - or it they will be required to stay home if a second wave hits. What can I do?
Talk to your boss. Explain your concerns and ask that he or she be flexible on days that you must be home with your children.
If you get pushback, tell him or her that the law requires that you be accommodated regarding your children - especially on days your children are "attending" class virtually. This means that you should be given the time to find someone to look after your children on these days.
If you can't find someone, tell your boss that you will need to be home with the children. Then discuss arrangements to work from home that are suitable for both you and your boss.
C. Since I went back to work, my boss insists that I have to wear a mask. Now he is also requiring that anyone who enters - customers, suppliers, couriers - also have to wear a mask. Does everyone really have to wear a mask at work, including me?
Yes. The City has required that masks be worn in the workplace - by everyone. Your employer has to follow the law. If you don't comply with the law, your employer may be fined. Therefore, you could be suspended or fired if you refuse to wear a mask or even if you fail to ensure others wear a mask.
That said, there are exceptions if you (or a customer) have a medical condition that does not permit the wearing of a mask or require accommodation under the Human Rights Code. No medical proof is required.
If not, you would be wise to wear a mask. But chose your fights with difficult customers. Provide masks to customers who are not wearing one. Be polite. Never get physical with a customer. Don't get into an argument with a customer who refuses to mask. Instead, steer the conversation onto more pleasant topics - such as the particular item they came to purchase in the first place.
1. I have been laid-off from work. Can I bring a claim against my employer?
Probably. If your written employment contract does not give the employer the power to lay you off, you usually will have a constructive dismissal claim under the common law. The only exception is where the industry standard permits lay-offs (such as in construction or manufacturing) or if you agree to the lay-off.
It is possible that the mere threat of such a claim may result in your employer calling you back to work sooner than it intended.
That said, be very careful about advancing such a claim. Your employer may not be inclined to hire you back if you do so! Instead, the employment relationship could be transformed from a temporary amicable separation into a hostile permanent divorce.
In reality, there is no guarantee that your employer will hire you back, given the profound impact of the viral outbreak. The Ontario government has recently deemed all employees laid-off during the pandemic as being on "emergency leave" retroactive to March 1, 2020. That provides some protection in law. However, it extends the period you remain in limbo. I suggest that you ask questions of your employer (and fellow workers) which will give you a clearer sense of whether or not you will return to work, when, and on what terms. Satisfy yourself if it worth waiting longer, looking for another job, and/or pursuing a constructive dismissal claim.
2. I have been laid-off. My company may be calling me back to work. I have been collecting CERB, which pays about the same as my usual wages. Do I have to return to work if I get called back?
Yes. The CERB is payable only if you are off work due to COVID-19. If you fail to report to work, you can expect that your employer will deem that you have quit.
Your employer does, however, have to accommodate you if you have young children. If you are unable to find childcare for your children, your employer may have to permit you to work from home. If that is not a viable option, you may take a job-protected leave of absence until daycare becomes available. If so, you would again qualify for the CERB.
3. I have been called back to work. I am worried about getting infected on public transit or at work. What can I do?
Speak to your employer about your concerns once you get back to work. Your employer is responsible for health and safety in the workplace. Point out any shortcomings that could lead you or others becoming infected. Offer specific solutions.
If your employer does not address your concerns, you can contact the Ministry of Labour. If your complaint is upheld, your employer must comply. Otherwise, you must accept the findings of the inspector or quit your job.
Your employer is not responsible for your mode of transportation. If you use public transit, you will be responsible for protecting yourself from infection as much as possible.
4. I have just returned to work and my boss told me that I will be paid because our company qualified for a "Wage Subsidy". But I am only getting 75% of what I was paid before, which is less than I am getting through CERB. What should I do?
Your company is acting unethically. You have two options.
If you do not have other job options, you may need to report to work. But that does not mean you must accept the wage reduction. You can bring a claim for breach of contract. But be careful: I urge you to give me a call to discuss how best to do this without jeopardizing your job.
The other option is to not report to work and to advance a constructive dismissal claim against your employer. I suggest you contact an employment law lawyer to discuss your options.
Unfortunately, under either option you cannot continue to collect the CERB since you were called back to work.
5. My workplace is operating, but everything in the company has changed since the pandemic started. Some colleagues have been fired and others laid-off. My boss expects me to take on a lot of new roles. Do I have to accept that?
Probably, as long as your hours remain the same. Within reason, companies have the right to assign duties as required. (It is likely that the pandemic will give even greater power to companies to make such changes.) Try to adjust. But speak to your boss and detail your concerns.
If your boss is adding the tasks once performed by other workers, without subtracting from your workload, that is not reasonable - particularly if your hours have increased considerably. Detail your concerns to your boss, in writing if necessary. Work out an arrangement that works for you and your company. If the company fails to address your concerns, you will likely have a viable constructive dismissal claim. If so, give me a call.
6. Our company is still operating, and I am still working. But I have started to feel ill. I might now have the Corona virus myself. What can I do?
Inform your boss immediately. Follow up in writing, including any concerns you may have about your co-workers failing to quarantine or practice social distancing. If you are sick, stay home.
If you have, in fact, been exposed to and contracted the Corona virus, you may have a viable Workers Compensation (WSIB) claim. However, you must establish that the virus was contracted during the course of your employment.
You may also have the right to sue for becoming infected, if your employer failed to take reasonable steps to protect you from exposure to one or more infected persons in the workplace. However, at this time, it is uncertain how the law will evolve to address these fast-changing circumstances.
7. My boss keeps talking about cutbacks. I am not sure he is being fully honest with me. What are my rights if I take time off work due to the virus?
The Ontario government recently revised the law to provide broad job protection to workers relating to COVID-19. Among other reasons, you will be provided job protection if:
* you take medical leave while under investigation, supervision or treatment for the virus;
* you are directed by your employer not to to work;
* you are acting in accordance with public health information or direction; and
* you are providing care to a person for virus-related reasons (such as a school or daycare closure due to the viral outbreak).
You will not be paid by your employer while on medical leave. However, you would very likely receive the Canada Emergency Response Benefit (CERB) upon applying for the same.
You are not required to provide a medical note to trigger your medical leave.
8. My workplace has shut down operations. I am not sure when it will re-open, if ever. What can I do?
Keep in contact with your boss or owner of the company. It is quite possible that your employer may re-open in the future. Find out.
Know your rights: You are entitled to wages during the time your workplace is closed down.
Apply for Employment Insurance or the Canada Emergency Response Benefit (CERB) immediately. The federal government has also offered various programs to assist workers during these difficult times. Apply early for all available assistance. Look for other work in the meantime.
If your workplace closes permanently, you will be entitled to your back wages and some additional compensation. But do not expect to receive funds quickly. You may find yourself competing with other creditors of your employer, including other workers, for wages you are owed. If an employer is no longer financially viable, there will not be enough assets to cover debts owed, including your compensation.
9. The schools are still closed and I was not able to find daycare for my children. My boss is not happy with me staying home with my children. What can I do?
You are entitled to time off to look for a daycare for your children. If you cannot find one, notify your employer and ask for their help. If no daycare is available, you can ask to work from home. This will allow you to fulfill your parental responsibilities.
If it is not feasible to work from home, your employer must accommodate you by providing you time off to look after your children.
That said, be careful in your work/life balance: While your employer must accommodate your childcare needs, he or she also has a right to expect that you will perform your job duties uninterrupted by childcare or other personal duties.
Speak to your boss about your needs (and your rights in law) and how they mesh with those of the employer. Try your absolute best to work out a suitable compromise.
10. My workplace has started lay-offs and terminations. If I am let go, are there government programs that can help me during this COVID-19 outbreak?
Yes. The Government of Canada has added or expanded programs for workers that have lost their jobs. In particular, the government is transitioning from the CERB to a simplified EI program, effective October 3, 2020. If you are self-employed or a gig worker, and thus not eligible for EI, the Canada Recovery Benefit (CRB) provides $400 per week for up to 26 weeks, beginning September 27, 2020. On that date, workers who contracted or were exposed to COVID-19 and their caregivers will be eligible for the Canada Recovery Sickness Benefit and Canada Recovery Caregiver Benefit, respectively.
Government responses continue to evolve as circumstances change. Be sure to stay up to date by periodically checking these websites:
City of Toronto COVID-19 Financial & Social Support, including Income Support, Property Tax Relief and Information about Financial Support for Renters.
Government of Canada – Economic Response Plan, including the Canada Emergency Student Benefit, and measures for self-employed individuals
Canada Revenue Agency (CRA), including the Canada Emergency Wage Subsidy (CEWS), changes to existing benefits and credits, etc.
Ontario Energy Board – Hydro rate update - residential customers will be the off-peak price for electricity until October 31, 2020
Ontario Family Support - government grant per child who cannot attend school or day care while these are closed
11. I am still at work. One of my fellow workers has been coughing persistently. I fear he has the Corona virus. What can I do?
Speak with your employer immediately. Tell him or her about your concerns. You have the right to be protected from unreasonable health risks in the office and to refuse work that endangers your health.
If the employer does not take action, you may wish to work from home. But do not take this action lightly. Speak with the employer again, and be clear that you need to protect yourself, and your family. Follow up in writing.
12. My workplace is still open. Everyone seems healthy but I am concerned that even one or more of my co-workers could have the Corona virus but have no symptoms. What can I do to protect myself from getting the virus?
Inform your boss of your concerns. Mention that transmission can occur through the air and that healthy people can be infected.
Ensure that your employer has implemented social distancing and sanitizing protocols, as well as preventing admission to the workplace to anyone showing symptoms of the virus, having returned from another country, or having been near an infected person over the past two weeks.
Request permission to work from home. If your boss refuses, you might consider requesting an unpaid leave of absence. Alternatively, you may notify your employer that the workplace is unsafe. You have the right to request an inspection by an Occupational Health and Safety Inspector. Should your complaint be upheld, you may have a claim for constructive dismissal.
In practice, this request may be of limited assistance since an inspection is unlikely occur for many weeks. Accordingly, look for options that address both your concerns and those of your employer.
13. I have developed a cough and high fever recently. I may have the Corona virus or possibly just the flu. I need to work since my spouse was laid off, but my boss is not happy with me. What should I do?
Speak with your boss immediately, having taken appropriate social distancing precautions. Ask if you can work from home, in order to avoid the risk of infecting your co-workers. Meanwhile, get yourself tested by a doctor to determine whether or not you actually have the virus. Put your health first, and that of your co-workers and family a close second.
If your boss refuses to address your health and/or economic concerns, you may wish to advise him or her that you are considered "disabled" under the Human Rights Code if you have actually contracted the virus. As such, you are entitled to accommodation to address your health concerns, failing which you may advance a claim for discrimination.
In practice, the best approach is to reach a workable compromise with your boss that suits your needs and those of the employer. If you wish to maintain a healthy relationship, know your rights, but consider the needs of your employer, including his or her duty to keep your co-workers reasonably free from exposure to the Corona virus.
Additional Employee Questions:
1. Does the draft employment contract meet your needs?
With the guidance of an employment law lawyer, you would be wise to look carefully at your employment contract before signing it. Most Ontario companies follow the Employment Standards Act, 2000 (ESA). In accordance with the ESA, an employee is entitled to minimum pay and benefits continuation for a fixed period of time (called the "statutory notice period"), such as one week's pay per year worked up to a maximum of 8 weeks.
But does your employer merely meet the minimum requirements or exceed them? If you get sick, what can you expect? If the relationship sours, will you be afforded the protection that you need?
While the law provides minimum protection, smart employees understand that they are valuable to their employer. They negotiate the terms of the employment contract before signing, rather than accepting whatever terms the employer proposes. They know that the employment relationship may not last until retirement. This is where we can assist.
2. What is your entitlement?
Many employers leave you the distinct impression that they are bound only by the minimums set out in the Employment Standards Act, 2000. You won't hear from them that the "common law" also applies. The common law usually allows the employee more room to negotiate for better packages and greater benefits, beyond the minimums. This is where you can benefit from hiring an experienced employment law lawyer.
There are numerous factors that determine your common law entitlement. These depend on your salary, benefits, commissions and bonuses, stock options, car allowances, and pension contributions.
Your entitlements also differ depending on your individual circumstances:
- Position and level of responsibility
- Length of employment
- Termination clause in employment contract
- Education and training
- Ability to find alternate employment
In negotiating your contract, you may also be concerned about other issues, such as overtime pay, benefits coverage, or bonus structures. You may also be worried that your employer will deny your long-term disability insurance or coverage. Give us a call. We can ensure that all aspects of the employment relationship are addressed in a manner that is satisfactory not only to the employer, but also to you.
You may have heard of us only after starting work with your current employer. Keep us in mind. Not all workplace relationships end well. Let's see what can be done to either salvage the relationship or negotiate the best possible terms of divorce.
3. Possible reasons to start a claim:
- If an employer terminates because you pointed out health or safety concerns
- If your employer does not pay your wages, bonuses and/or commissions
- If changes to the work environment result in danger to your health or safety
- If you are forced to perform unsafe work or illegal acts
- If your termination is related to you getting sick or injured