COVID-19 & Employee Rights: Everything You Need to Know

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What are my employer’s responsibilities where a safe work environment is concerned?

An employer has responsibilities under occupational health and safety legislation to maintain a safe and healthy work environment. Anyone who meets the criteria for self-isolation and quarantine should be advised by their employer to do so. Anyone who is exhibiting symptoms of COVID-19 should be sent home immediately on medical leave.

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Can I refuse to go to work because of concerns over COVID-19?

If a workplace poses a clear danger to the health and safety of its employees then it may be reasonable to refuse to continue to work. This will depend largely on:

• what the nature of the workplace is;
• the suspected safety risk;
• the individual needs of the employee; and
• what is reasonable in the circumstances.

The Occupational Health and Safety Act protects Ontario employees from discipline or termination in the event that they report or refuse to work as a result of a safety concern. The Occupational Health and Safety Regulation in British Columbia provides that same right.

Anyone who meets the criteria for self-isolation and quarantine should be advised by your employer to do so. Anyone who is exhibiting symptoms of COVID-19 should be sent home immediately on sick leave.

LEARN MORE:
Right to refuse unsafe work during COVID-19

With the threat of COVID-19, employers will need to be more flexible when accommodating the safety concerns of their employees. If the nature of an employee’s job allows for them to continue to work away from the office, it will likely be in the employer’s best interest to provide this option.

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Can my employer let me go or fire me if I do not want to work because of concerns about coronavirus contamination at work?

If your employer is properly following the government’s guidelines for a safe workplace during the pandemic, you are required to report to work, even if you don’t feel safe.

If an employee doesn’t go to work in a situation where the workplace is deemed safe, their employer may be able to treat the work refusal as a resignation. In that case, the employee would lose their job. They would not be entitled to severance pay, and would no longer qualify for certain government benefits.

Employees and employers are encouraged to have a discussion and find an arrangement that works for both parties.

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What can I do if my employer is requiring me to continue to work but we are considered non-essential?

Under the Emergency Management and Civil Protection Act, it is considered an offence to be in non-compliance with a declared emergency.  Any workplaces that continue to operate as normal who are not considered an essential service can be reported to local officials.

Report a non-compliant business in Toronto

Report a non-compliant business in Vancouver

To report a non-compliant business in Ottawa call 311

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What are my employee rights regarding mandatory masks in the workplace?

Can I be fired for wearing a mask to work?

Can my employer fire me if I refuse to wear a mask on the job?

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Can an employee refuse to self-isolate?

As previously mentioned, all employers have a duty to provide a safe and hazard-free work environment. And so, whether an employee is actually ill from the virus, been in contact with someone who is ill from the virus, or has, as another example, travelled internationally in the last 14 days, the employer would have the right to force that employee to stay home, in order to protect its other employees.

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Does my employer have to pay me if they tell me not to come into work due to COVID-19?

Employers are not required to pay employees who have contracted COVID-19 or are in quarantine. Similarly, if your employer has requested that you self-quarantine or has asked staff to go on leave as a result of COVID-19, they are not necessarily required to continue to pay their employees.

If your employer has the ability to allow you to work remotely and you are able to continue to perform your usual duties, then you are entitled to your usual pay and benefits.

Employees may also be able to use vacation days, sick days, banked overtime or access unpaid sick leave protection pursuant to provisional legislation in Ontario, British Columbia and Alberta.

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What are my rights if my employer won’t let me work from home?

It depends on the circumstances. For example, if an employer will not allow you to work from home because your children are home and you have no choice but to care for them, that would be discrimination on the basis of family status under both the Ontario and BC Human Rights Codes.

The employer would have to accommodate to the point of undue hardship. If, however, the employer is asking you to come into work because the workplace is safe, the company has taken all reasonable precautions and is following the government’s recommendations, then an employee would be obliged to attend.

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Returning to school during the coronavirus outbreak. Do I still have to go to work if I choose to home school?

Your employer has a duty to accommodate your situation; it cannot discriminate against you on the basis of your family status. However, you also have a duty to cooperate. You must exhaust all possible solutions (including but not limited to asking family members, seeking out daycare, and proposing reduced or modified hours) before resorting to asking your employer to allow you to take a leave of absence. If full-time schooling is being made available by the local school board, then your employer is not obligated to accommodate your specific preferences. Your rights to family status accommodation require that you have no other option but to stay home with your children.

If the school board is only offering in-person school on alternate days, your employer will have to accommodate child care obligations. This is because you are no longer simply expressing a preference, but now fulfilling a substantial parental obligation. This would attract the duty to accommodate under the Human Rights Code and Act. If your employer does not accommodate child care obligations, you should speak with an employment lawyer to intervene.

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Can my employer make me stay at home without pay if there is a COVID-19 outbreak in my neighbourhood?

No, an employer can’t force you to stay at home without pay because there is a COVID-19 outbreak in your region. If your employer requests that you stay home for this reason, you must be provided with full compensation.

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Can my employer require me to work from home?

An employer who chooses to retain staff through remote work options has the right to enforce regular working hours. If employees are obligated to continue their duties remotely during the COVID-19 isolation period, then the employer is required to help facilitate the transition to remote working.  This may include reimbursement, equipment, and/or training.

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Can my employer choose to not allow certain staff to work from home?

An employer has the right to choose which staff members are eligible to work remotely. Employers cannot, however, be discriminatory in how they choose who can and cannot work remotely.

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Am I owed severance if I am fired or let go due to the COVID-19 pandemic?

Businesses across Canada are being negatively impacted by the response to growing coronavirus pandemic. As a result, many employers have chosen to permanently lay off employees in order to reduce the cost of payroll. Everyone from the frontline office staff to middle managers, to senior executives are being affected.

In Ontario, British Columbia and Alberta, an employer can terminate an employee or let an employee go at any time for almost any reason, as long as the reason does not violate the employee’s human rights, and is not discriminatory. This is what we call a termination without cause.

In a dismissal without cause, the employee is owed severance pay. In Ontario, British Columbia and Alberta, the provinces’ respective Employment Standards Act or Code determines the minimum amount of severance an employee should receive. However, it is common law that sets the standard for what a laid-off employee should actually receive. To correctly calculate severance pay under common law, we consider the employee’s age, years of service with the company, position, and the terms of their employment contract.

An employer may tell an employee that has been fired due to COVID-19 that they have been let go “for cause.”

A termination for cause means that an employer does not have to provide the employee with common law severance. In reality, a dismissal for cause is only reserved for the worst types of workplace misconduct. Employers often apply a for cause dismissal to terminations that do not qualify. Before you accept your employer’s reason for termination during the coronavirus pandemic, you need to talk to an employment lawyer to determine your options.

If you have lost your job due to the coronavirus outbreak, you should contact an employment lawyer at Samfiru Tumarkin LLP for a consultation to find out what your full rights and entitlements are.

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Can my employer lay me off temporarily due to COVID-19?

Can my employer put me on a temporary layoff during the coronavirus outbreak? This is the most common question that individuals are asking during this crisis. Your employer may be able to enact temporary layoffs for some or all of their employees to deal with the temporary closure of a business or any financial troubles that may arise as a result of the COVID-19 outbreak.

Ideally, employers should have properly drafted employment agreements or manuals which explicitly allow the company to temporarily lay off its employees by contractual right. Absent a contract allowing an employer to temporarily lay off an employee, it may be more difficult for that employer to enact a temporary layoff.

If an employer puts you on a temporary layoff as a result of a downturn in business, that could entitle you to severance pay. The changes to the terms your job (what you and your employer previously agreed to) would be significant, and may actually be treated as a termination and a wrongful dismissal.

To discuss the specific circumstances of your case, please contact us.

LEARN MORE:
• Ontario: Infectious Disease Emergency Leave extended to July 2022

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If I agree to take a temporary layoff during the COVID-19 epidemic, does that give my employer the right to do so again in the future?

Many employers in Ontario, British Columbia and Alberta are placing employees on a temporary layoff during the coronavirus outbreak. Their goal is to eventually bring employees back from temporary layoff once conditions ease and the economy begins moving forward once more.

In the event that an employer does not have a contractual right to temporarily lay off an employee, and that employee agrees to take a temporary layoff in response to COVID-19, the employee should make clear to their employer IN WRITING that they are doing so only due to these exceptional circumstances. The employee must confirm that they do not agree to temporary layoffs being a term of their employment.

In this way, you may be able to take action if your employer tries to place you on a temporary layoff again after your return from a coronavirus-related layoff. You can treat the layoff as a termination (or constructive dismissal) and receive full severance pay. Contact an employment lawyer to secure an appropriate and fair severance package.

LEARN MORE:
• Severance Pay Ontario
• Is Severance Pay Mandatory in Alberta?
• What is the Maximum Severance Pay in BC?

Toronto employment lawyer and partner Jon Pinkus addressed an Employment Law Show caller’s question about temporary layoffs and coronavirus.

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What happens when the COVID-19 layoff period in Ontario ends?

The Infectious Disease Emergency Leave (IDEL) ended on July 30, 2022. Employees who were still on IDEL are no longer deemed to be on this type of layoff, and are likely owed an Ontario severance package. The regular provincial rules regarding temporary layoffs and constructive dismissals will again apply.

Read more about what happens when your IDEL layoff ends in Ontario.

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Can my employer fire me if the province orders all non-essential businesses to close?

Businesses and workplaces that absolutely cannot operate remotely *might* have the option of laying off employees temporarily, for the duration of the closure, without having to pay severance. However, if employees are laid off beyond the date that the business can reopen, severance would be owed.

On the other hand, most businesses can and have already started operating remotely. These businesses will not be impacted by the government’s order. If these businesses still choose to lay off employees for financial reasons, they would still potentially be liable to pay employees their severance entitlements. Before drawing any conclusion on this, contact our employment law team to find out what your rights are.

• On Mar. 23, 2020 the Ontario government ordered all non-essential services to shut down. The order took effect on Mar. 24, 2020 at 11:59 p.m. throughout the province. The government has posted a list of essential workplaces that may continue to operate.
• On Jul. 17, 2020 the Ontario Government announced that the province would begin moving to phase 3, allowing most business and public spaces to begin reopening with safety restrictions in place. Industries and places of business that are considered high-risk venues will remain closed until further notice.

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Do I still have to pay for my health benefits while on temporary layoff?

If you have been laid-off but continue to receive your medical benefits your employer is allowed to request your continued contribution to the plan in order to maintain your benefits.

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I was laid off. My employer still wants me to perform work duties, without pay or compensation. Is that legal?

Employment laws have not been suspended during the COVID-19 pandemic. In other words, your employer can’t put you on a temporary layoff, and still expect you to work.

If your employer requires you to work, they can recall you and provide compensation for the work that you perform.

You may personally choose to handle limited tasks while on a layoff. However, if you refuse to work without pay during your layoff, your employer can’t discipline you. If the company terminates your employment after you decline to work, it would be a wrongful dismissal, and we can help you claim your full severance pay.

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Can my employer force me to use a location-tracking app to monitor my movements at work?

A growing number of companies in Canada are asking returning employees to use smartphone apps that track their location at work. These tracking or contact tracing apps can perform various roles. Some can determine if an employee has had contact with a coworker who tested positive for COVID-19. Other apps can detect if the worker has been too close to other employees, violating social distancing rules.

Generally, your employer has the right to ask you and other employees to use these smartphone apps and other technologies to track you while you are on the job. In other words, it is legal for your employer to track you at work using an app or technology. Since the employer is paying you for your time, they are entitled to know about your location and what you are doing.

What your employer can’t do is force you to use such tracking or contact tracing technology outside of the workplace or work hours. You have the right to disconnect any app or software once you are on personal time.

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Can my employer reduce my pay, wages or hours during the coronavirus pandemic?

No, your employer can’t make significant changes to your job during COVID-19, including pay or hours worked. A significant reduction in any of those areas may result in a constructive dismissal.

A constructive dismissal occurs when an employer makes changes to the terms of your employment without your permission, or if not otherwise allowed through an employment contract. You can treat your employment as being terminated, and receive full severance pay from the company. Severance pay is based on many factors, including age, length of service, and position, and is often more than one week per year served.

In order to properly determine if you have been constructively dismissed, an employment lawyer at Samfiru Tumarkin LLP needs to review your past employment history and employment agreement.

Read more:
Claiming employment insurance due to coronavirus

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Can my employer reduce my pay if they are collecting CEWS from the government?

Under common law, an employer does not have the right to reduce or cut your pay significantly during the coronavirus pandemic. This fact applies in cases where your employer is receiving the Canada Emergency Wage Subsidy benefit from the federal government to cover 75% of your wages.

If your employer receives the 75% wage subsidy, and decides not to cover the remaining 25% of your pay, you have the option of treating the reduction as a constructive dismissal. Your employment would effectively be terminated, and you can pursue full severance pay with assistance from one of our employment lawyers.

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Can my employer change my work location in reaction to coronavirus?

If an employer is changing your work location in good faith to respond to the state of the emergency and improve health and safety, yes. As long as they return you to your prior work location once the pandemic subsides and the government advisories are lifted, it would be permissible.

A Vancouver employment lawyer on Global News Radio 980 CKNW explaining what employees should do if their workplace closes due to COVID-19.

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Can I refuse to return from a layoff because I earn more on the CERB?

If you refuse to return to your job from a temporary layoff, your employer may consider that you have resigned or quit your job. In that case, you would not be entitled to a severance package.

You will also lose the ability to collect either CERB or employment insurance benefits.

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What if I choose not to return to my job after being recalled from a temporary layoff?

Voluntarily choosing not to return to your job would likely be considered a resignation of your employment, and would eliminate your right to severance.  Failing to return to work within a reasonable time after being recalled by your employer may also result in a for-cause termination.

There are, however, instances when refusing to return to work may be justifiable:

• You are not being provided with proper PPE (personal protective equipment) required to safely perform your job or your employer is otherwise not complying with the Occupational Health and Safety Act by taking required or recommended precautions to limit transmission of the COVID virus;
• You have a sincere reason to believe that a machine (or other pieces of equipment) or any other device or thing that you’re going to operate or use to carry out your work is likely to endanger you or a co-worker;
• That the physical condition of all or part of the workplace is likely to endanger you;
• You have reason to believe that your employer is not permitted to be open or operate at the time of your recall; or
• The terms and conditions which will apply to your recall are radically different, in terms of your duties and responsibilities or level of pay; then the answer may be different.

In any of these situations, your refusal may be justifiable, but it is important to note that these types of situations – and your rights – are highly dependent on the circumstances surrounding your refusal.

You may not be justified in refusing to return to work based on some of the reasons listed above if you are not aware of what measures your employer has put into place to limit transmission of the virus because you’ve refused to even return to the workplace or failed to discuss the matter with your employer.

If you are reluctant to return out of fear of contracting the virus or possibly infecting family members, your refusal may not necessarily be justified – this is a complex issue and you should seek legal advice.

There is a very fine line between a justifiable refusal and refusal which may give rise to reasons to terminate your employment. Therefore, it is vital that you seek legal advice from an employment lawyer at Samfiru Tumarkin LLP before refusing a return to work, in order to avoid a potentially very costly mistake.

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Can I be forced to take a COVID-19 test before returning to work? Can I be fired for refusing the test?

Generally, you cannot be fired for refusing a COVID-19 test. Employees have a right to privacy, and this includes privacy about your health. That being said, your employer has a duty to ensure that the workplace is safe for all employees in accordance with the Occupational Health and Safety Act in Ontario and Alberta, and the Occupational Health and Safety Regulation in BC. Therefore, your employer has to balance your right to privacy with their duty to maintain a safe workplace.

For the most part, while employers are likely allowed to ask you screening questions to determine whether you have symptoms or have been in contact with someone with COVID-19, employers will not be allowed to force you to take a COVID-19 test. However, there are certain exceptions to this rule. For example, if you are a healthcare worker, the duty to maintain a safe workplace likely outweighs the employee’s right to privacy.

If your employer has been asked to take a COVID-19 test, and you are not comfortable doing so, contact one of our employment lawyers for a consultation so that we can help you navigate your unique situation.

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Once COVID-19 vaccines became available, many companies across Canada implemented mandatory vaccination policies for provincially and federally regulated employees. However, a vast majority of these mandates are not enforceable, and employees can’t be put on unpaid leave or fired for cause (without severance pay) if they refuse to get the jab.

Read our resource on mandatory vaccinations for more information about employee rights and the COVID-19 vaccine.

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COVID-19 benefits and wages

During the peak years of the COVID-19 pandemic, the federal government provided emergency financial support for employees and employers.

These benefits programs included:

• Canada Emergency Response Benefit or “CERB” (ended Sep. 26, 2020)
• Canada Recovery Benefit or “CRB” (ended Oct. 23, 2021)
• Canada Worker Lockdown Benefit or “CWLB” (ended May 7, 2022)
• Canada Emergency Wage Subsidy or “CEWS” (ended Oct. 23, 2021)
• Canada Emergency Student Benefit or “CESB” (ended Aug. 31, 2020)

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Paid sick days

Some provinces provide paid time off work to employees who fall ill with COVID-19. These programs give workers the choice of staying home to recuperate instead of going to work sick or losing wages.

The following provinces offer paid sick days:

• Ontario provides three paid sick days to employees for COVID related matters
• British Columbia allows employees to take five paid sick days for any injury or illness, including COVID-19

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Changes to provincial laws

In response to the COVID-19 pandemic, some provinces in Canada made changes to legislation that governs provincially regulated employers and employees. These modifications attempted to change a company’s ability to put workers on a layoff without pay if their business was impacted by the pandemic.

In particular, Ontario implemented the Infectious Disease Emergency Leave (IDEL). This change to the Employment Standards Act allowed pandemic-battered employers to put staff on an unpaid layoff, without employees being able to treat the action as a termination through a constructive dismissal claim. Despite confusion on the subject, this legislation didn’t override an Ontario workers right to claim severance pay when placed on “deemed” IDEL. This regulation applied from Mar. 1, 2020 to Jul. 30, 2022, after being extended a total of five times.

British Columbia briefly extended the amount of time an employee can be laid off, from 13 to 16 weeks during the COVID-19 pandemic. This change ran until Aug. 30, 2020.

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