By Sean O’Donnell

These blog posts are meant to provide educational content and are not to be taken as legal advice.

The following provides a general overview in dealing with the current and potential impact of COVID-19.  While the spread of COVID-19 remains a fluid and ongoing global pandemic, the purpose of this article is to provide employees with some fundamental information at this time. SJO Legal will continue to monitor the situation and update our clients as necessary. For specific issues, please contact one of us at SJO Legal. 

Which legislation protects employees during COVID-19?

Many different statutes can apply depending on the nature of your job.

Pursuant to the Occupational Health and Safety Act (the “OHSA”) employers have an obligation to take every precaution reasonable in the circumstances to protect their employees. This could include working from home, or other hygienic and social distancing measures within the workplace. Most employees who reasonably believe a condition in the workplace is likely to endanger their health and/or safety can refuse to work under the OHSA. Employees cannot be penalized for this in the face of the pandemic.

According to the Workplace Safety & Insurance Board (the “WSIB”), if you become infected with COVID-19, you may be entitled to compensation and services under the Workplace Safety and Insurance Act (the “WSIA”).

If your employment is governed by the Employment Standards Act, 2000 (the “ESA”), then you will likely be protected by a number of unpaid protected leave provisions including sick leave, family responsibility leave, family care giver leave, emergency leave, family medical leave, and critical illness leave. It is important to note that employees ought not to be discouraged or reprised against in the workplace for exercising these protected leaves pursuant to the ESA. 

Can I be fired for contracting COVID-19?

No; an employer may not terminate an employee or otherwise discriminate against an employee due to the illness. According to the Ontario Human Rights Commission (the “OHRC”), COVID-19 is considered to be a “disability” and therefore remains a protected ground free from discrimination. 

Can I refuse to work due to COVID-19?

Employees generally have a right to refuse to work where they have a reasonable basis to believe that their duties present a danger to their health and/or safety. Whether or not an employee’s belief regarding the safety or the workplace is “reasonable” will depend on, among other things, the nature of the workplace, the employee’s individual circumstances and the current climate relative to COVID-19. 

Employers are obligated to investigate and consider refusals to work, however, in light of ongoing concerns relative to social interaction, the typical method of investigations will have to adapt as necessary.

Does my Employer owe an obligation to continue to pay me if I contract COVID-19, or if I have been advised to self-quarantine?

Subject to applicable policies and company practices, employers are generally not required to pay employees who are not working due to illness. 

Under the applicable legislation, such as the ESA, employees are entitled to a number of unpaid, but job protected, sick days. Further, human rights legislation requires employers to accommodate employees with a disability to the point of undue hardship. As mentioned above, in the opinion of the OHRC, COVID-19 is considered to be a disability for the purposes of protection from discrimination.

Can I refuse travel despite it being a part of my job description?

This will depend on the nature of the employee and the particulars of the job. It will also be important to consider where the travel is taking place. Is it one of the known centres of COVID-19, or is it a shorter trip to a rural area in Ontario? 

Older employees, for example, are known to be more at risk to the effects of COVID-19 and therefore should consider not traveling at all. If there is a legitimate work refusal for safety reasons, the OHSA will govern. 

As of March 13, 2020, the Government of Canada has requested Canadians avoid any travel outside of Canada. 

As of March 16, 2020, anyone, including Canadian citizens and permanent residents, who exhibit symptoms abroad will be restricted from returning to Canada. Individuals who are returning to Canada from international travel have been asked to self-quarantine for at least 14 days.

Can my employer require me to work remotely?

Yes; in the current climate, this is a reasonable precautionary step and will be seen as a way to encourage social distancing. 

I want my employer to purchase protective equipment for employees. Do they have to?

The current preventative measures being requested of communities and employers at this time are to encourage hand-washing, social distancing, and disinfect commonly used areas.  As of March 12, 2020, public health authorities are not recommending personal protective equipment such as masks and gloves; therefore, your employer is not obligated to purchase them. However, your employer is still responsible for ensuring a safe and hygienic workspace. 

My employer is not letting me wear a mask. Is this legal?

Yes; unless the use of personal protective equipment, such as masks is a condition of your employment or otherwise required for the employee to safely perform their duties. Depending on what your job entails, having a mask could be required to safely perform your duties. You should contact SJO Legal for more information about your specific situation. 

Can I apply for EI Benefits if I have been laid off due to COVID-19?

Yes. Regular EI benefits have not been subject to any change and employees who are laid off may apply for regular EI benefits if they qualify under existing guidelines.

EI sickness benefits also provide up to 15 weeks of income replacement and are available to eligible employees who are unable to work because of illness, injury, or quarantine, thus allowing them time to restore their health and return to work. At the present time, the one-week waiting period for EI sickness benefits has been waived for claimants who have been quarantined. 

What sort of job protection is being considered by the Government?

On March 16, 2020, the Ontario government announced it intends 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 currently being considered would 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; and
• The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

This legislation would also ensure that employees will not need to provide a medical note if they take leave. Further, the measures would be retroactive to January 25, 2020; the date on which the first presumptive case of COVID-19 was confirmed in the province. 

The Ontario government is also reviewing current access and eligibility to emergency assistance, which is available through the Ontario Works (“OW”) program to support individuals who are impacted by COVID-19 and who are unable to meet their basic living expenses. 

What is the Federal Government doing to help employers retain its employees and continue operating businesses as efficiently as possible?

As of March 18, 2020, the Government of Canada has taken action to protect our economy, and the health, safety, and jobs of all Canadians during the global COVID-19 outbreak. 

The following has been taken directly from Prime Minister’s office and further information can be found at the following link:

 https://pm.gc.ca/en/news/news-releases/2020/03/18/prime-minister-announces-more-support-workers-and-businesses-through

“Support for Workers

The Government of Canada is taking action to:

• Provide additional assistance to families with children by temporarily boosting Canada Child Benefit payments. This measure would deliver almost $2 billion in extra support.
• Introduce an Emergency Care Benefit of up to $900 bi-weekly for up to 15 weeks to provide income support to workers who must stay home and do not have access to paid sick leave. This measure could provide up to $10 billion to Canadians, and includes:
  • Workers, including the self-employed, who are sick, quarantined, or who have been directed to self-isolate but do not qualify for Employment Insurance (EI) sickness benefits.
  • Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick, but do not qualify for EI sickness benefits.
  • EI-eligible and non EI-eligible working parents who must stay home without pay because of children who are sick or who need additional care because of school closures.
• Introduce an Emergency Support Benefit delivered through the Canada Revenue Agency to provide up to $5 billion in support to workers who are not eligible for EI and who are facing unemployment.
• Provide additional assistance to individuals and families with low and modest incomes with a special top-up payment under the Goods and Services Tax (GST) credit. This measure would inject $5.5 billion in the economy.
• Waive, for a minimum of six months, the mandatory one-week waiting period for EI sickness benefits for workers in imposed quarantine or who have been directed to self-isolate, as announced on March 11.
• Waive the requirement for a medical certificate to access EI sickness benefits.
• Extend the tax filing deadline for individuals to June 1, and allow all taxpayers to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after today and before September 2020. This relief would apply to tax balances due, as well as instalments, under Part I of the Income Tax Act.  No interest or penalties will accumulate on these amounts during this period. This measure will result in households having more money available during this period.
• Provide eligible small businesses a 10 per cent wage subsidy for the next 90 days, up to a maximum of $1,375 per employee and $25,000 per employer. Employers benefiting from this measure would include corporations eligible for the small business deduction, as well as not-for-profit organisations and charities.  This will help employers keep people on their payroll and help Canadians keep their jobs.
• Provide increased flexibility to lenders to defer mortgage payments on homeowner government-insured mortgage loans to borrowers who may be experiencing financial difficulties related to the outbreak. Insurers will permit lenders to allow payment deferral beginning immediately.

In addition, to provide targeted support for vulnerable groups, the Government is investing to:

• Reduce minimum withdrawals from Registered Retirement Income Funds (RRIFs) by 25 per cent for 2020 in recognition of volatile market conditions and their impact on many seniors’ retirement savings.
• Implement a six-month, interest-free, moratorium on Canada Student Loan payments for all individuals who are in the process of repaying these loans.
• Provide $305 million for a new distinctions-based Indigenous Community Support Fund, to address immediate needs in First Nations, Inuit, and Métis Nation communities.
• Support women and children fleeing violence by providing up to $50 million to women’s shelters and sexual assault centres to help with their capacity to manage or prevent an outbreak in their facilities. This includes funding for facilities in Indigenous communities.
• Provide an additional $157.5 million to address the needs of Canadians experiencing homelessness through the Reaching Home program.

Support for Businesses 

In the face of an uncertain economic situation and tightening credit conditions, the Government is taking action to help affected businesses. To support Canadian businesses and help them retain their workers during this difficult time, the Government is announcing measures to:

• Allow all businesses to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after today and before September 2020. This relief would apply to tax balances due, as well as instalments, under Part I of the Income Tax Act. No interest or penalties will accumulate on these amounts during this period. This measure will result in businesses having more money available during this period.
• Increase the credit available to small, medium, and large Canadian businesses. As announced on March 13, a new Business Credit Availability Program will provide more than $10 billion of additional support to businesses experiencing cash flow challenges through the Business Development Bank of Canada and Export Development Canada. The Government is ready to provide more capital through these financial Crown corporations.
• Further expand Export Development Canada’s ability to provide support to domestic businesses.
• Provide flexibility on the Canada Account limit, to allow the Government to provide additional support to Canadian businesses, when deemed to be in the national interest, to deal with exceptional circumstances.
• Augment credit available to farmers and the agri-food sector through Farm Credit Canada.
• Launch an Insured Mortgage Purchase Program to purchase up to $50 billion of insured mortgage pools through the Canada Mortgage and Housing Corporation (CMHC). As announced on March 16, this will provide stable funding to banks and mortgage lenders and support continued lending to Canadian businesses and consumers. CMHC stands ready to further support liquidity and the stability of the financial markets through its mortgage funding programs as necessary. The Government will enable these measures by raising CMHC’s legislative limits to guarantee securities and insure mortgages by $150 billion each.

The six largest financial institutions in Canada have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges, such as pay disruption due to COVID-19, childcare disruption due to school or daycare closures, or those suffering from COVID-19. As a first step, this support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products. The Government of Canada will continue to monitor evolving economic conditions and seek greater relief measures should it be necessary.

In order to move forward with implementing these new measures needed to provide timely support for Canadians and to ensure the Government has every tool at its disposal to address potential challenges that may arise, the Government intends to introduce special legislation and seek the approval of Parliament.”

Conclusion

Should you have any further questions regarding your specific employment situation regarding COVID-19, or any other matter, please contact SJO Legal. At our firm, the health and safety of our team, and our clients, remains our top priority during this difficult time. Please ensure that you are taking all the necessary preventative measures to help reduce the burden on our health care system and to ensure your loved ones are doing the same. 

We are all in this together!