COVID-19 and Employee Rights | Employment Law Show TV – S4 E19

Episode Summary

EMPLOYEE RIGHTS DURING THE COVID-19 PANDEMIC, temporary layoffs, your right to refuse unsafe work, and more on Season 4 Episode 19 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada. **Aired March 28, 2020**

Episode Notes

Employer refusing COVID-19 protocols

The owner of the small accounting firm I work at is refusing to self-isolate after returning from a trip abroad. I don’t want to work with my employer if there’s a chance he has COVID-19. What do I do?

Lior explains that you have a right to refuse unsafe work due to COVID-19.

Segment starts at 2:36

CALL: Temporary layoff for long-service employee

My partner has been laid off from her job as a dental hygienist. She has been working for the same office for 20 years. Her employer was unclear about what type of layoff it is, but said they may revisit her position later on. What is her recourse?

The employment laws in Canada have not been suspended during the COVID-19 pandemic. Therefore a temporary layoff is still illegal in most situations. If your employer lays you off temporarily, you have a right to treat the layoff as a termination. You do not have to accept the layoff. If you do treat it as a termination, your employer must pay you severance. Severance is based on a number of factors, including age, length of service and position.

• LEARN MORE: Severance pay for dental hygienists

Segment starts at 5:11

EMPLOYEE RIGHTS DURING THE COVID-19 PANDEMIC

1️⃣ What are an employer’s responsibilities where a safe work environment is concerned?

• An employer must keep  the workplace safe. They must protect their employees and avoid putting them in a position where they are placed under undue risk. During the coronavirus pandemic, an employer must allow you to practice safe social distancing in the workplace. Working in an environment where you are standing should to shoulder with the person next to you is not acceptable.

If an employer has the ability to let you work from home (remotely) they should allow you to do so. That would be the safe option during this outbreak.

Your employer should also follow all guidelines from public health officials. They can ask an employee to stay home if they:

• are exhibiting symptoms of COVID-19;
• if they returned to Canada recently from abroad; or
• the employee or coworkers are vulnerable to the coronavirus.

Segment starts at 8:33

2️⃣ Does my employer have to pay me if I am sent home sick, or required to self-isolate?

If you can’t work because you either have coronavirus or are in self-isolating or quarantine, your employer does not have to pay you. They are not required to pay you your regular wages.

If you have access to a sick day policy, you can use those sick days while you are off work and receive your regular pay.

You may also have access to vacation days. You can choose to use those vacation days to cover your time off due to COVID-19. Your employer also has the ability to direct you to use your vacation time while you are off sick or in self-isolation.

If you are unable to work due to quarantine, you can apply for Employment Insurance sickness benefits and the new Canada Emergency Response Benefits.

Segment starts at 10:06

3️⃣ If I am on sick leave, does my employer have to hold my job?

• The government has instituted new protection for employees during the COVID-19 pandemic. If you take a leave of absence or sick leave, your employer must put you back in your job when you return. Your job must be protected. You can’t be let go because you took a sick leave.

Segment starts at 11:20

4️⃣ Do I have a right to stay home if I have to care for a sick family member?

• You have a right to stay home to care for an ill family member or look after children who are no longer in school. You can take time off work without penalty. You may qualify for the CERB program, which will provide $2,000 per month to employees who are no longer working due to COVID-19.

Segment starts at 12:21

5️⃣ Can my employer cut my hours or pay if business slows due to the coronavirus pandemic? 

• An employer does not have a legal right to make unilateral changes to the terms of your employment. They can’t:

• make significant reductions to your pay or wages;
• cut your hours of work;
• change your shifts;
• change your work location, impacting your commute;
• demote you; or
• make significant changes to your duties or job title.

If any of the above do occur without your permission, you may be able to claim constructive dismissal. You can choose to leave your job with severance pay and seek employment elsewhere.

The same option exists during the COVID-19 crisis. You can claim constructive dismissal during COVID-19, depending on what your employment contract says.

Segment starts at 13:21

6️⃣ Can my employer lay me off due to the COVID-19 outbreak?

• A termination during the coronavirus crisis is no different than one during pre-virus times. An employer can exercise their right to let you go without cause or put you on a layoff, but must still provide you with a severance package.

The only exception to that rule during the COVID-19 pandemic is if the government forces your employer to close. This may happen if your business is not deemed to be an essential service. In that case, severance pay would not be owed. However, if they lay you off under these circumstances, but fail to bring you back after the government allows the business to reopen, severance would then be owed.

Segment starts at 14:47

7️⃣ Can my employer put me on a Temporary Layoff? Do I have to accept it?

• You do not have to accept a temporary layoff, as long as the business can still operate and is deemed an essential service.

Segment starts at 16:05

CALL: Unsafe working conditions

It is impossible to practice social distancing in our office. We are in constant contact with one another. No enhanced cleaning measures have been set in place. We could work from home remotely, but the employer refuses to allow us to do so. I’m nervous. What should I do?

Your employer should take steps to create a safe work environment if they have the ability to do so.

If they fail to ensure a safe workspace, you can engage in a work refusal. You can contact the Ministry of Labour, who will investigate the workplace. If they find that the environment is not safe, they will order the employer to make the appropriate changes.

Another option may be to claim a constructive dismissal. Your employer is forcing you to work under potentially dangerous conditions. You may be able to leave with full severance pay.

A third option may be to file a disability claim if you can’t work due to COVID-19. If you doctor believes that you shouldn’t be working due to stress and anxiety exacerbated by the coronavirus, you may be able to claim sickness benefits or pursue the LTD option.

Segment starts at 18:46

CALL: Age discrimination and COVID-19

Yesterday I received a temporary layoff notice from my employer for a 17-week period. He told me that he was laying off employees over the age of 60 because they are more susceptible to the COVID-19 virus. Can he do that?

Your employer can’t treat you differently because of your age. Age discrimination in the workplace is illegal. Even if the employer has good intentions due to COVID-19, the act of laying off older employees is a human rights violation.

Find out more about temporary layoffs.

Segment starts at 21:39

Seeking compensation after a layoff

I have been put on a temporary layoff due to COVID-19. Do I have to make a choice between asking for severance pay or applying for employment insurance benefits?

You should pursue both severance pay and employment insurance (EI) benefits if you are laid off. If you are laid off due to COVID-19, the very first thing you should do is apply for the CERB.

Segment starts at 25:26

Employees refusing unsafe work

Can an employee refuse to work because they are afraid of contracting COVID-19 in the workplace?

An employee’s refusal to work must be reasonable. If you are working for an essential business where proper social distancing is being practiced, your employer should be able to expect you to work.

It is important for employers to be understanding of their employees’ fears. They should offer alternatives where possible, such as working from home or changing work hours.

Segment starts at 26:31

Childcare requirements during COVID-19

My child’s school is closed due to coronavirus, and I can’t find anybody to take care of them. Do I still have to go to work?

No, you do not have to go to work. You have the ability to stay at home. You may also be eligible for financial support through the Canada Emergency Response Benefits program. Find out if you qualify.

Segment starts at 27:55

Next Episode: Employment Law Show S4 E20 – COVID-19, Temporary Layoffs and CERB