With the Federal Government announcing a $1 billion COVID-19 Response Fund, President Trump announcing that the United States will prevent incoming travel from Europe, and the World Health Organization declaring a pandemic, the coronavirus (COVID-19) has come to North America in a real way. In response to coronavirus at work, Ontario employers have begun to implement measures to ensure productivity but also keeping employees healthy at the same time. Here is what you need to know about the various implications that coronavirus can have on the workplace.
Coronavirus and Working from Home
Governments have recommended “social distancing,” which includes people not gathering in large groups and staying away from other individuals of at least several feet. Social distancing would apply to schools, restaurants, grocery stores, and the workplace. If work can be done remotely, employees and employers should discuss whether working from home can be a viable option. There is no general law that prohibits an employee from working at home. Employers and employees can develop a system that ensures work is done promptly and with accountability, including using online chat (Slack, Microsoft Teams) and intranet systems to log in.
If an employer orders an employee to work from home, the employee must work from home. Generally, an employee has no right to work in a specific location. If an employer can relocate an employee’s work location within a reasonable distance, an employer can also relocate the employee to their home temporarily. What an employer cannot do is order an employee to work from home but altering their conditions of work. If an employer alters an employee’s conditions of work such as their salary, work hours, or duties and responsibilities, the employee may have a constructive dismissal claim. Employees who are constructively dismissed are allowed to quit and claim severance pay under the law.
Sick Leave – In case you get coronavirus
Should an employee contract coronavirus, the employee should stay home to prevent spreading it to their co-workers. If a diagnosed employee insists on coming to work, the employer may have the right to order the employee to remain home. Fellow co-workers could also refuse to report to work because of the dangerous conditions.
In Ontario, most employees are entitled to three days of unpaid sick leave under the ESA. They are also entitled to more days if they are caring for a family member. An employer is not obligated to pay an employee who is on sick leave, although an employee may use their vacation time when they are away.
Employees should consider applying for short term disability benefits if they have access to these benefits. If not, employees can apply for employment insurance (EI) sick benefits. The recent COVID-19 Response Fund includes waiving the one-week waiting period which allows employees to access these EI benefits right away.
Theoretically, an employer could terminate an employee for a prolonged absence due to coronavirus. However, this could lead to a discrimination claim as employers are prohibited from terminating an employee due to disability. While coronavirus itself may not be considered a disability under the Ontario Human Rights Code, the conditions that follow coronavirus such as pneumonia or other severe lung conditions could be considered disabilities.
Layoffs
Working from home may not be a viable option for many employers, including restaurants, retail, and other B2C companies. Coronavirus has reportedly disrupted 75% of US companies’ supply chains. Faced with a downturn in business and a possible recession, employers may have to terminate or layoff employees. Even in an economic downturn, the Employment Standards Act and the courts have repeatedly stated that economic factors or an employer’s failure to pay will not decrease their severance obligations. In fact, the courts have ruled that a poor economic climate could lead to a greater termination notice period, or severance, for a terminated employee.
Work-Sharing Program - Reduced Work Load
Instead of completely laying off employees, employers may consider the federal government’s Work-Sharing program. Under this program, eligible employers who reduce its employees’ workload equally can reduce the workload and pay of its employees, and have Service Canada provide employment insurance (EI) benefits at the same time. This could be a win-win situation for both employees and employers, as employees will receive more income than regular EI benefits, and employers can maintain productivity and its workforce.
The COVID-19 Response Fund has waived the mandatory 30-day waiting period and has increased the Work-Sharing duration from 38 weeks to 76 weeks.
Summary - Work Together
While recent events have caused quite the stir, the best way to tackle coronavirus is to work together. With everyone’s obligations and rights in mind, employers and employees should discuss systems to ensure work productivity.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about coronavirus, working from home, or sick leave, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.