Your Rights As An Employee During The COVID-19 Pandemic

Let Tamming Law help answer your questions about your employment and the Coronavirus (COVID-19) Crisis.

Canada has never faced a crisis of this nature before. Most employers are running scared. Their cash on hand is being drained as they try to continue to make payroll. Most employees are also worried about their jobs.

The only good news is that while these may be unprecedented economic times, Ontario law already more or less covers the rights and obligations of worker and employer. There is actually not much mystery when it comes to that.

Let’s get at your questions.

I tested positive for Covid-19. Can I be fired?

You cannot be fired. That is discrimination on the basis of disability. I cannot imagine any employer who is thick enough to fire an employee with the virus, but we have seen stranger things happen. If fired, you could sue for both wrongful dismissal notice damages and for a violation of your human rights. If you are unable to work at home due to the virus, you may, of course, apply for “illness EI”.

I don’t think I have Covid-19 but I have to self-isolate. Can I be fired for this?

No. Ontario just passed a law which expressly prohibits this. The law was likely unnecessary, but it’s there now.

Can I be forced to work at home?

If the main tasks of your work can be done remotely and if social distancing at work is not that feasible, your employer is within his rights to ask you to work at home.

Can I demand to work at home?

Can you complete all the material tasks of your work remotely? If so, most employees would be within their rights to ask to work at home. This fits with longstanding rules that govern the workplace. For instance, if you suffer from anxiety at the workplace related to Covid-19, working at home would likely be what for years has been called a “reasonable accommodation”. Further, you have always been able to refuse to work if you reasonably find the workplace unsafe – and this would not be a tough test to meet in the case of Covid-19.

Can my employer lay me off?

Unless there is a past pattern of layoffs or an employment agreement that allows for them, technically the employer cannot lay you off. If she does, you may sue for common law damages for wrongful dismissal.

But I did say “technically”. In fact, in most cases, it would make no sense at all to sue when you are initially laid off. Why? Out of any lawsuit, you have to repay EI any monies they paid you; that can add up. Also, you have a duty to keep your financial losses as low as possible (this is called the duty to “mitigate”). The courts have said that this includes a duty to stay with your employer as long as practical. So imagine that at trial your employer says, “I liked Gary, I still do. He was a great employee. When Covid-19 hit our factory we had to lay people off for three months. Gary sued me from the get go. He could have had his job back after three months, like everyone else did, and his losses would have only been a few months in lost pay.” That kind of evidence will kill the merits of any lawsuit.

What about layoff and Employment Standards Act payments?

If your employer has little or no work for you, he can lay you off without triggering the payment of “termination pay” or “severance pay”. These are minimum floors where your employer has to pay you one week of termination pay for every year worked (to a cap of 8 weeks) and one week of severance pay for every year worked (but only if the employer is a very large one with a payroll of $2.5m or more).

He can lay you off for a maximum of 13 weeks within a 20 week period (in some cases, it is 35 weeks within a 52 week period), without triggering these payments. The employer does not have to announce the time period of the temporary layoff at its beginning. This might sound unfair, but in many cases the employer has no clue how long the layoff will have to last, so you may be left hanging.

What if my employer lays me off for more than 13 weeks?

An employer has to “fish or cut bait” before the 13 weeks is up. If the layoff turns out to be for more than 13 (sometimes 20 weeks), you can at that time consider yourself dismissed and claim compensation for “constructive dismissal”. Again, this only makes sense if you don’t want to return to work after this crisis has passed. Also, you could not sue if you signed an employment agreement which allows such an indefinite or longer leave of absence.

Can my employer, instead of laying me off, slash my hours or pay?

You can agree to that if you want. You can job share if asked. Nothing prevents that. But if you object to such a cut, that amounts to “constructive dismissal” and you can sue for wrongful dismissal damages (we have a memo on such lawsuits – just email us).

Even if the emergency aid package tops up your pay a little, if you are still left with less compensation, you may sue for constructive dismissal. Of course, this only makes sense if you did not enjoy your job or just don’t want to go back after this crisis has passed. In this economy, people need to think very carefully whether they want to end all ties with their employer, but that is an economic decision, not a legal one.

I am afraid that my employer may go bankrupt

If an employer goes under, the officers and directors of that corporation may be personally liable for some of the termination or severance pay that is owed to you. But the reality is that employees rarely see any such pay in the case of bankruptcy. Lousy news, I know, but it is what it is.

A final word or two that has nothing to do with the law

It’s not legal advice, but many predict a strong jobs rebound when this crisis passes. So hope endures. Finally, for those clients who never are able to get their old jobs back, a year later when I meet them in the grocery store, many of them tell me that a forced change was the best thing that ever happened to them.

All the best to you and your loved ones. Sterkje. That is Dutch for “Strength”.