COVID-19, Temporary Layoffs and CERB | Employment Law Show TV – S4 E20

Episode Summary

COVID-19 AND TEMPORARY LAYOFFS (when you aren’t called back to work), qualifying for the CERB program, and more on Season 4 Episode 20 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 April 4, 2020**

Episode Notes

Employee safety during COVID-19

I don’t feel safe at work. Can my employer still force me to come to work?

Your employer can expect you to continue working if the business is open and they can otherwise provide a safe work environment, under the circumstances. If there are safety precautions in place, and you don’t go to work, you could be considered to have resigned. However, if your employer is not allowing you to practice social distancing, that’s different. You do have a right to refuse unsafe work due to COVID-19. Your employer has to fix that problem, and the Ministry of Labour could be called in.

Segment starts at 2:14

Hours Reduced and Forced to use Vacation

My hours have just been cut in half. Every week I now work 2.5 days and take 2.5 days of vacation. What are my rights once my vacation expires? I’m a 55-year-old salaried employee and have been working at the company for 15 years.

Your legal rights don’t expire because of COVID-19. Once your vacation is used up, you have a choice: you can continue to work the reduced hours, or you could treat this as a constructive dismissal. A change to the terms of employment, such as a reduction in hours or pay, can be treated as a termination, and you could leave your job and get your severance.

Segment starts at 4:56

COVID-19 and Temporary Layoffs: When You Don’t Get Called Back to Work

1️⃣ How long can a temporary layoff last?

In most cases, temporary layoffs are actually illegal. You don’t have to accept the layoff. You can treat it as a termination and get severance. If you decide to accept the layoff, it could last for 13 weeks if your employer doesn’t continue your benefits, and 35 weeks if your employer does continue your benefits. If you are not recalled back to work at that point, you will be considered to be terminated.

READ MORE
• Temporary layoff rights in BC
• Temporary layoffs Ontario
• What is a temporary layoff in Alberta?

Segment starts at 7:13

2️⃣ Do I have to accept a temporary layoff in the first place?

You do not have to accept a temporary layoff. Unless your employment agreement allows temporary layoffs, you can treat it as a termination and get severance.

Segment starts at 8:31

3️⃣ What are the risks of accepting a Temporary Layoff?

The problem with accepting the layoff is that by allowing the layoff to happen now, you’ve arguably given your employer the right to do it again and again.

Segment starts at 9:21

4️⃣ I have accepted a temporary layoff, but haven’t been called back to work. What now? 

If your employer doesn’t call you back to work at 13 or 35 weeks, your employment will be terminated.

Segment starts at 10:39

5️⃣ My employer said they need to wait longer than the 13-week period. Is that acceptable? 

If your on a 13-week layoff and you haven’t been called back, and they don’t know when or if you’ll be recalled, the law dictates that it will automatically be a termination. Be sure to communicate with your employer about when you might return, and speak to an employment lawyer to get help.

Segment starts at 11:48

CALL: Company lays off all employees

Given that I work in a sales position, I have the ability to work remotely during the COVID-19 pandemic. However, the company has decided to lay everybody off. Can they do that, even if some employees can work from home?

The fact that you could work from home doesn’t necessarily mean that there is work to do. It’s possible that there may not be work for you to do. The question is what are your rights now? The changes to your employment could be a constructive dismissal. You can treat it as a termination and get your severance.

Segment starts at 14:32

Canada Emergency Response Benefits – What You Need to Know

1️⃣ What is the CERB program? 

The Canada Emergency Response Benefit is a new benefit that the government has initiated that is available for people whose job has been eliminated due to COVID-19. Here’s what you need to know about the CERB.

Segment starts at 16:17

2️⃣ Who is covered by the Canada Emergency Response Benefit?

To qualify for the CERB you would have had to lose your job as a result of COVID-19, and have had income over the past 12 months of more than $5,000, and have been without income for 14 days. Also, if you’re caring for someone who is sick, or you are a parent who can’t work because you need to take care of your children, you qualify for the benefit.

Segment starts at 17:28

3️⃣ How do you apply?

Starting April 6, you can apply online through the CRA website.

Segment starts at 18:35

4️⃣ I am already receiving EI after being laid off. Can I still apply for the CERB?

The government has said that if you have applied for EI, or you are receiving EI, you cannot apply for CERB.

Segment starts at 20:00

5️⃣ Is there an alternative to the CERB if I have been laid off?

EI is the standard benefit that applies to most employees, which requires a record of employment.

Segment starts at 21:15

6️⃣ Do independent contractors have access to CERB or severance pay?

A true independent contractor doesn’t qualify for EI, but they would qualify for CERB if they are no longer earning income. Often employees are misclassified as independent contractors, and because the law might consider you to be an employee, you could still be entitled to severance.

Segment starts at 22:38

CALL: Company denies employee accomodation

My doctor is telling me not to work because of various health issues that make me more susceptible to COVID-19, but my company expects me to keep working. If I say no, can they fire me without severance pay? I’ve spent 18 years with the company. Can I be fired during COVID-19?

If you have the support of your doctor, you cannot legally be fired for taking a medical leave. You also cannot lose your severance for refusing unsafe work, or because you need to take a medical leave. You can be off work, and there’s nothing your employer can legally do to you.

Segment starts at 25:38

CALL: Layoffs and Severance Pay for long-service employees

My employer closed last week and I was put on a temporary layoff with benefits for up to 13 weeks. I’ve worked there for 30 years. How do I protect my severance with this layoff?

You can treat the temporary layoff as a termination and require the company to pay your severance.

Segment starts at 27:09

Next Episode: Employment Law Show S4 E21 – COVID-19: Call an Employment Lawyer

Previous Episode: Employment Law Show S4 E19 – COVID-19 and Employee Rights