Covid19 Employment Q&A for Businesses & Entrepreneurs
Business owners 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 the vast majority of small and medium sized businesses, and our legal team is here to help. (We also serve on the Board of Canada’s biggest Business Development Area - Duke Heights - where we provide legal counsel about employment law to thousands of businesses in the Greater Toronto Area).
The focus of this page is to help entrepreneurs and business owners handle common legal issues that we are seeing with many businesses. We cover topics such as laying off workers due to covid and not re-hiring all of them, as well as dealing with difficult employees who don’t want to follow covid19 health protocols.
FINDING BALANCE AND SURVIVING AS A BUSINESS
We also focus on how to deal with staff that are asking to work from home, employees that are denying that they have the virus despite showing symptoms, temporary business closures, as well as making use of the available government programs such as the CEWS.
Just like you, Kevin Marshall Legal Office falls into the category of a small & medium sized business, and we’ve all felt the impact of the pandemic. This is why we try to do our part and make sure businesses survive, and are able to work out favourable negotiations with their employees to avoid legal battles.
However if it comes down to a legal dispute from something like an employee termination or layoff due to covid19, we are always here to help you resolve your legal disputes and mitigate the damage and costs.
A. Having laid-off my workers, I want to hire most of them back. But not all. What should I do about 2 or 3 workers that I don't want back?
Nothing. You can extend their lay-off during the pandemic as long as the government maintains its "state of emergency".
On the other hand, expect that these workers will start asking questions about why they weren't hired back. If they hire a lawyer and start demanding a package, you may have to revise your position since it is not legally defensible.
B. Some of my staff are already talking about staying home with their children after schools re-open. Do I have to let them work from home?
Perhaps; but there is much uncertainty. If your workers are back at the office, you should be clear that you expect that this arrangement will continue.
If not, be very careful. You are required to accommodate your employees with young children. If you have made an exception for one worker to work from home, the law will likely side with that worker if you get pushback about returning to the office.
On the other hand, if all your workers have been working from home and you are about to ask that they return to the office, you can require that they do so, bearing in mind your duty to accommodate.
Be flexible. And be consistent with the guidelines imposed by government. For example, if a second wave of virus hits and the government orders that in-person attendance in class will end, the law will not be on your side if you refuse a worker's request to work from home. Grant these requests - but on the understanding that your workers focus on their work duties throughout the workday.
C. The City is now requiring that everyone entering my business must wear a mask. I had enough trouble just getting all of my workers to wear masks - and now some are giving me pushback about requiring customers to wear masks. What should I do?
Protect yourself and your business from the dual threats posed by the virus and City regulators: Go to the City website and print off the official mask notice. Post it on the outside of your door. Then explain to your staff that you are following City rules - which apply to you, to them, and to customers.
Tell your staff how to deal with complaints from customers: They (and you) are following City rules, not your own. Offer customers a mask. Enquire if they have a medical condition that does not permit their wearing masks. Remind your staff to steer the conversation to more pleasant topics as soon as possible. If a customer still refuses to wear a mask, it may be wise to drop the topic.
Be firm; but expect plenty of pushback from your employees. And be sure to lead by example: Wear a mask yourself.
1. I finally qualified for the CEWS. Can I use this Subsidy to pay my workers without making up the difference?
No, according to the spirit of the law (and possibly also the letter of the law). The purpose of this program is to allow workers to keep working during periods of revenue shortfall.
Workers that are paid 25% less than their previous earnings have the right to refuse to return to work and advance a constructive dismissal claim. Otherwise, they may return to work but demand that they be paid their missing wages.
2. I had to lay-off some workers. What are the implications in law?
The Ontario government recently changed the Employment Standards Act, 2000 regarding laid-off workers. These workers will now be considered to be on "emergency leave" and thus will no longer be eligible to pursue a constructive dismissal claim under the ESA until six weeks after the state of emergency has ended. This provides employers greater flexibility regarding personnel decisions during the interim period.
However, the employment relationship is governed by not only the ESA, but also the common law and the employment contract between worker and employer. If an employment contract does not expressly permit you to lay them off, you would be wise to obtain the consent of an employee to do so. If not, you run the risk of the employee advancing a constructive dismissal claim. The only exception is if the industry standard permits lay-offs; for example, manufacturing, construction and factories.
In practice, the law may be in conflict with the reality on the ground - particularly in these uncertain economic times created by the viral outbreak.
The key is to understand the law, and the resulting risks, but make personnel decisions based on the economic realities facing your firm. If an employee is laid off, consider the following: Will he or she likely be hired by a competitor? How much do you value this employee? Is there any prospect of negotiating an alternative arrangement with this employee?
Your best approach is to be transparent with your employees and partially seek their consent. Explain the financial hardship that your firm is experiencing. Assure them that they will be called back to work once this difficult period has ended. Seek their written consent to a temporary lay-off on the understanding that such consent will not apply on future occasions.
3. I have called my workers back from lay-off. But one of them doesn't want to return to work. She claims that the risk of public transit is not worth it since she earns almost as much with the CERB as she did before. Is she right?
Possibly. But she is not well-informed. You need to communicate to her about the implications of her possible decision to not return to work: She will be deemed to have resigned her employment and will no longer qualify for the CERB.
Assure her that you take your responsibility for health and safety in the workplace seriously and detail the measures you have taken. But inform her that she must take measures to protect herself from infection en route to work, including on public transit, just as she does when she goes shopping.
In other words, she has no leg to stand on. But communicate that message with wisdom and compassion.
4. I have re-opened my workplace, but have been getting a lot of push-back from my employees. Some complain about the new safety and hygiene guidelines and others about their new duties. What should I do?
Stay the course. But open a dialogue with your workers. Explain things clearly in a meeting. Follow up in writing. Address individual concerns if they persist.
The law gives you wide scope to implement health and safety guidelines to protect you and your workers from infection. And it gives you wide scope to assign new duties to meet new realities. But don't expect workers to work longer hours for the same pay.
Understand that patience is required. Give your employees time to adjust the many changes you have implemented.
5. My revenues are down to a point where I simply must reduce my labour expenses. I prefer not to lay-off or terminate my staff. Are there government programs to assist me?
Yes. The Work Sharing Program permits you to avoid lay-offs (or terminations). Your staff will continue to work, but at reduced hours; they will receive E.I. benefits for the hours they no longer work. Income earned will not be clawed back by E.I. The waiting time for this program has been reduced from 30 to 10 days.
There is also the Government Wage Subsidy of 75% of salaries up to $58,700 ($847 per week). To qualify, you must show that your company revenues have decreased by at least 30% due to the viral outbreak. This program is retroactive to March 15, 2020.
Be sure to keep abreast of all recent developments. Please see the following links:
City of Toronto Economic Support & Recovery
Government of Canada – Economic response plan
Business Development Bank of Canada: Business Credit Availability Program
Export Development Canada: Business Credit Availability Program
Canada Revenue Agency (CRA)
Ontario Energy Board – Hydro rate update
6. One of my employees refuses to social distance from other workers. Can I take action?
Yes. You have a legal duty to protect workers whose health is likely to be endangered. Therefore, you must implement hygiene protocols, including social distancing guidelines, and put such policies in writing, including penalties for non-compliance.
Once the protocol is put in place, be sure to enforce it zealously, particularly once a complaint has been brought to your attention. Be sure to obtain both sides of the story before implementing any penalty. Termination for cause is likely justifiable if your social distancing guidelines are violated, particularly on more than one occasion.
7. My office is open. But some of my staff are worried about contracting the virus themselves. Should I take action?
Yes. You have a duty to protect healthy employees from staff with symptoms of the virus, who have interacted with someone infected, or who recently visited high-infested cities, countries or regions, such as New York, Florida or Brazil. Such staff should be kept away from the office for a minimum of 2 weeks. They must be paid, regardless of whether or not they work from home, as per long-standing legal stipulations.
Conversely, the recent changes announced by the Ontario government to protect workers permit you, as the employer, to require a worker who may expose others in the office to an infectious disease such as COVID-19 to effectively take an unpaid medical leave of absence.
You should also implement firm protocols in writing regarding sanitizing and proper hand-washing, etc. Consider other measures, such as providing staff with face masks and disposable gloves. You must pay for any expenses that result from these measures.
At the same time, you cannot terminate a worker or reduce their hours, wages or roles, because they developed symptoms of the virus. That constitutes discrimination based on disability, as recently mandated by the Human Rights Commission.
In short, the law is no friend of employers during these difficult times. Nonetheless, speak with your employees, both collectively and individually, about the implications of the virus. Address their concerns. Let them understand the dilemmas you are also facing. Retain their trust and assure them that you have their best interests at heart.
8. My business has been declared an "essential service" so it is still operating. But one of my employees insists on working from home. Do I have to agree to her request?
No. As long as you have implemented appropriate hygiene protocols and otherwise taken steps to protect the health and safety of your workers, you are not obliged to permit your workers to work from home, even if that can be done efficiently. That said, choose your fights: if you trust your employee and her request will not be unduly disruptive, consider relenting on this point if she feels strongly about the need to work from home.
9. One of my employees appears to have symptoms of the virus, but denies it. Can I take action?
Yes. You can explain the risks, while acknowledging that the virus has symptoms consistent with those of the seasonal flu. Explain the risks of transmitting the virus (or the flu) to co-workers and ask that the worker with symptoms stay away voluntarily from the office.
If the worker refuses to take action voluntarily, do so yourself. The Ontario government recently revised the law to permit employers to direct employees not to work if they risk infecting other workers, in which case such employees need not be paid.
Alternatively, you may wish to pay them to stay home, even if they are not working. Also, request that they get medical clearance from their doctor in writing before returning to the office.
10. I am considering the temporary closure of my office. What are the implications in law?
Consider all less drastic options. What government programs can you apply for during the viral outbreak? Can you retain a small number of workers - in particular, your most reliable? Can you reduce hours or wages or lay-off workers (all of which in law requires the consent of your employees)?
If you must close the office, you must pay your employees for the period that your workplace is closed, even if they successfully obtain Employment Insurance. If the employees are unionized, the terms of the collective bargaining agreement will apply.
If you do not pay your employees, they will have a viable claim for constructive dismissal.
In practice, given the foregoing, look for other options short of closing down completely. Speak with your employees: Will they agree to such options? Be particularly flexible with those employees you most want to retain.
11. My staff are working from home. How can I retain control and maximize productivity?
You can do neither, to the extent you could before. And the first week or two will be particularly difficult.
Remind employees that the all work-related communications and data are the exclusive property of you, as the employer. Mention that you have the right to periodically check their laptops and work emails to ensure they only contain appropriate content.
At the same time, be understanding of the new reality facing your employees. Speak with them at length. Look for mutually beneficial opportunities: Would reduced hours for employees with young children be considered? Would they consider a temporary layoff upon your verbal assurance they would be the first to be hired back? Alternatively, would they accept a temporary layoff in writing upon your written assurance that their agreement only applies on this one occasion?
12. Some of my staff have asked about a medical leave of absence relating to the Corona virus. Must I agree to that, even if they don't provide a medical note?
Quite likely. Recent changes to law prohibit you from requesting a medical note for reasons relating to COVID-19. These include employees who are under investigation, supervision or treatment for the virus; who were directed by you not to to work; who were acting in accordance with public health information or direction; and who provide care to a person for virus-related reasons (such as a school or daycare closure due to the viral outbreak).
The job of each employee is protected during their medical leave.
13. Some of my staff who are working at home have young children who have yet to return to school. Can I require that they devote themselves to their job?
Yes and no. You have the right to expect that your employees perform their duties uninterrupted by personal concerns. However, you also have a duty to accommodate their childcare needs. That means they must be given the opportunity to look for daycare.
When daycare is not available (or they are too old for daycare), an employee must be provided the chance to work from home while looking after their child or children. If work from home is not feasible, the employee must be provided sufficient time off to be with children, for which they need not be paid.
Upon request, employees must be granted a job-protected leave of absence to care for their children.
Additional concerns about employees
1. Company Policies and Employee Handbooks
As employers, it is wise to anticipate concerns when it comes to your business. Before you hire one or more new employees, consider putting written policies and employee handbooks in place, so that your employees clearly know their rights, duties and obligations.
Setting privacy restrictions in writing may also be necessary, including email, text messaging, cell phone and internet usage while at work. You may wish to take measures to ensure that company trade secrets are kept confidential and sensitive documents are kept locked in assigned locations.
We can help you with many legal aspects, such as:
- Terminations and the right process
- Procedures to resolving workplace issues
- Workplace harassment and other issues
- How to handle difficult employees
- Education on Human Rights issues
- Obligations of employers
- Compensation and benefits
- Employee disability
- Company handbooks, employee manuals and workplace policies
- Drafting job offer letters
- Contracts: full-time, part-time & project-based
- Strategies to minimize loss in current claims
2. Contracts and Agreements
The process of creating an employment contract can be overwhelming and complicated. All contracts must follow the legal guidelines and should be carefully reviewed by a lawyer before presenting to all signing parties. Contracts should be updated each time there is a change to an employee position. This not only ensures clarity but protects employers from possible disagreements.
Written contracts are particularly helpful if an employee is fired or quits his or her job. Therefore, a termination clause is helpful in potentially minimizing the size of a "package" for the departing employee. Other clauses may also be useful in situations where an employee will have access to confidential information about your business. A confidentiality clause ensures that the employee has legally binding responsibilities to refrain from disclosing confidential information.
Other clauses to consider for signed employment contracts are non-competition and non-solicitation provisions. These should apply both during the employment period and after an employee leaves your firm.
3. Difficult Employees
Absenteeism is one of the most difficult areas of people management. Make sure you know what your obligations to your employees are, within your firm's current circumstances. It is important for both employer and employee to be reasonable.
Can employers ask for a doctor's note as proof of the need for absence from work? If an absence becomes lengthy, ask for a doctor's note (and offer to reimburse the employee for that expense).
Keep track of their progress. Do everything reasonably possible to accommodate the needs and limitations of an ill employee, and document your efforts and related expenses incurred. If your employee has already told you about their health condition, be mindful and understanding. Your employee's happiness does contribute to your overall business productivity.
4. What steps do I take to protect my business?
Any former employee can try to sue for any reasons, so keeping a well-documented communications trail during all employees' tenure with your organization will help to protect your firm. Keep detailed records, confirm details as much as possible in writing, and be specific.
Come see us. Let’s sit down and tailor a plan for your firm's unique needs in managing your employees, drafting job offer letters, contracts, termination letters, notices and policies that work for your establishment.
5. Other reasons you may need our services:
When your employee or former employee sues your company, seek the advice of an experienced professional right away: Call us at 416-383-0550.