The rapid spread of the Novel Coronavirus (COVID-19) has been declared a pandemic by the World Health Organization (“WHO”) and governments are implementing drastic and unprecedented measures to flatten the pandemic’s curve, avert an economic collapse and assist businesses, while financially and otherwise helping citizens carry on through these uncertain and anxious times.
The situation is fluid and developments are occurring almost by the hour if not the minute. There is no consistency among provinces at this point with each acting based on their own circumstances.
Ontario has today declared a state of emergency. Schools, colleges and universities were ordered closed last week for 2 weeks following the March break. Businesses are struggling as are their employees (as is everyone). Certain sectors have been ordered to close while others are required to modify way they will be allowed to operate for the foreseeable future. The border is closed to most travellers and travel is being curtailed or significantly restricted, all at a time when many families are travelling for the March break. Courts are being suspended.
Anxiety and uncertainty is pervasive on a global level and within our own homes.
Everyone is doing their best, but with uncertainty comes fear and anxiety. Employers are doing their best to carry on while responding as best they can to ever changing circumstances. Life as we knew it is suspended and one wonders if traditional employment law concepts will be applied strictly to things that are done or measures taken by employers in these extraordinary times.
It is trite to say that these are unprecedented times.
I will not go through each development and every action taken provincially, federally and municipally to address COVID-19 and flatten the curve. They are changing by the moment and this would be impossible.
There are many resources available through the Ontario government and the Canadian government. Among others:
- The 2019 Novel Coronavirus (COVID-19)
- Coronavirus Disease 2019 (COVID-19)
- Coronavirus disease (COVID-19)
On an international level the WHO has published Getting your workplace ready for COVID-19. In the U.S., the Center for Disease Control and Prevention has also published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020. Of course, these resources must be tailored to the Canadian legal landscape, but they are a good starting point.
There are statutory obligations that could apply, depending on the circumstances, and it is important to consider these among many others. At a high level and among others:
- The Occupational Health and Safety Act (“OHSA”) imposes duties on a number of workplace parties (employers, employees, supervisors etc…). There is a paramount duty on the employer to take “every precaution reasonable in the circumstances for the protection of a worker”. Employers are also required to communicate regarding health and safety issues and provide certain training.
In addition, most workers in Ontario (there are exceptions) have a “right to refuse” work in certain circumstances. For example, an employee refuses to work with an employee who has returned to work after a visit to a country or region where the incidence of COVID-19 is pronounced. Or, where the employee refuses to work with an employee who has flu like symptoms. Each situation will have to be approached on a case-by-case basis but reviewing the legal requirements, in advance, and understanding the obligations will put the employer in a good position should a work refusal occur.
There are instances where the workplace harassment and violence provisions of the OHSA and employer policies could also be engaged.
- The Employment Standards Act, 2000 sets out many provisions that could apply, again depending on the circumstances, including various leaves of absence (i.e. sick leave, family responsibility leave). In the case of a pandemic, employees may be able to access entitlement to a “declared emergency” leave under the ESA. There are pre-conditions to the application of declared emergency leave under the ESA. A helpful resource for understanding the various leaves of absence is the Ministry of Labour Policy and Interpretation Manual.
Although the ESA allows employers to request “evidence reasonable in the circumstances” of entitlement to a leave, such as a doctor’s note in certain cases, employers may decide to forego this requirement for absences from work because of cold or flu-like symptoms, or due to self-isolation obligations.
- The Human Rights Code prohibits discrimination and harassment in employment on a variety of prohibited grounds. Where an employee engages in conduct or comment that engages the Code and applicable employer policies, the employer must be ready to respond.
A flu or a cold is generally not considered to be a disability for purposes of the Code. However, it is possible that an employee who is or who is believed to be suffering from COVID-19 could file a claim and argue that this constitutes a disability (or perceived disability) under the Code. If, for example, the employee shows up for work and is displaying symptoms consistent with COVID-19 or who has visited a hotspot area hit by COVID-19, and the employee is sent home, the employee might complain under the Code.
The Ontario Human Rights Commission issued a Policy Statement on the COVID-19 Pandemic in which they come down on the side of COVID-19 being a disability. Their position is not law, but it certainly is instructive:
The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
Furthermore, the Commission is clear as relates to sending an employee home:
An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.
The Commission does, however, note certain employer rights:
At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
Each case will have to be considered on its own merits, but here are a few issues that might be considered:
Declared Emergency Leave
The Employment Standards Act, 2000 provides for a job protected leave of absence in the event of a declared emergency which meets certain criteria. On March 17, 2020, the Government of Ontario “announced that it is taking decisive action by making an order declaring an emergency under s 7.0.1 (1) the Emergency Management and Civil Protection Act. In doing so, Ontario is using every power possible to continue to protect the health and safety of all individuals and families.” The orders will remain in place until March 31, 2020 “at which point they will be reassessed and considered for extension, unless this order is terminated earlier”.
Section 50(1) of the Employment Standards Act, 2000 provides:
50.1(1) An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and,
(a) because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act;
(b) because of an order that applies to him or her made under the Health Protection and Promotion Act;
(c) because he or she is needed to provide care or assistance to an individual referred to in subsection (8); or
(d) because of such other reasons as may be prescribed.
As the Ministry of Labour notes, to qualify, an employee will not be performing the duties of his or her position because of a emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and one of the other elements listed in a, b, c, or d, must be present.
According to the Press Release:
As a result of this declaration and its associated orders, the following establishments are legally required to close immediately:
- All facilities providing indoor recreational programs;
- All public libraries;
- All private schools as defined in the Education Act;
- All licensed child care centres;
- All bars and restaurants, except to the extent that such facilities provide takeout food and delivery;
- All theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies; and
- Concert venues.
Where this leave applies, the employee is entitled to job protection and to:
53(1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
The Ministry of Labour Policy and Interpretation Manual deals with Section 50.1 — Emergency leave, declared emergencies.
Even where the declared emergency leave does not apply, other job protected statutory leaves may be available to the employee.
Given the declared state of emergency in Ontario and directives given to certain businesses about their ability to carry on business, as well as the more general impact that COVID-19 is having on the economy and businesses more generally, many employers are having to either implement telecommuting/work from home policies, where feasible. But there are many employee whose work doesn’t lend itself to working from home, and in these cases, employers are having to consider layoffs.
I won’t review collective agreement or labour issues applicable in unionized workplaces.
For non-union employees, there are statutory, common law and contractual issues to consider.
Employment Standards Act, 2000
The Employment Standards Act, 2000 deals with layoffs, including temporary layoffs. The Act provides that a temporary layoff is:
- a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;
- a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,
- the employee continues to receive substantial payments from the employer,
- the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
- the employee receives supplementary unemployment benefits,
- the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
- the employer recalls the employee within the time approved by the Director, or
- in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or
- in the case of an employee represented by a trade union, a lay-off longer than a lay-off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union.
The period of 20 consecutive weeks is a rolling period such that, if the employee is laid off for more than 13 weeks in any consecutive 20-week period, the lay-off ceases to be temporary and would be considered a termination for purposes of the Employment Standards Act, 2000.
I would encourage you to review the Ministry of Labour Policy and Interpretation Manual and, specifically, those provisions dealing with Termination and severance of employment and layoffs.
The Common Law
Many employers believe that because the Employment Standards Act, 2000 gives them a right to temporarily lay off employees, that this gives them an unqualified right to lay people off.
Unfortunately, notwithstanding the temporary layoff provisions in the Employment Standards Act, 2000, at common law, an employer generally does not have a right temporarily lay off an employee and doing so could be considered a constructive dismissal. In these unprecedented times, and legal and statutory obligations, including under the Occupational Health and Safety Act, perhaps a more relaxed legal analysis is called for. That said, the pre-COVID-19 law appears to be fairly consistent to the effect that, a temporary layoff cannot be invoked unless the employer is contractually entitled to do so (Michalski v Cima Canada Inc., 2016 ONSC 1925 (CanLII)). It is rare, in my experience, to have such specific contractual temporary layoff rights.
In other words, complying with the Employment Standards Act, 2000 doesn’t get you around the common law, except in specific cases where a contratual right to temporarily lay off has been agreed to.
Notwithstanding this, these are not easy cases for employees. A recent case in point is Gent v. Strone Inc., 2019 ONSC 155 (CanLII), where the Court accepted the Michalski approach, while finding that, save for limited circumstances, an employee must accept a recall or be met with a failure to mitigate argument and all the consequences that go with that.
In these difficult times, one would think that employees who are temporarily laid off as a result of COVID-19 related business issues, and who are in receipt of EI benefits, and perhaps other compensation through the employer and/or government, will have some explaining to do, if they sue the employer and claim to have been constructively dismissed as a result of the temporary layoff. That said, these are very early days, and those considerations will sort themselves out in the fullness of time.
No one can possibly know what the future holds or what tomorrow will bring. While it is important to remain flexible and recognize that it is impossible to predict and plan for every eventuality, it is prudent to consider some of the “what ifs” and how your organization will respond, rather than “winging it” in the moment.