COVID-19: Employee Rights, Leave, and Income Replacement
The coronavirus has left employees and employers with many questions about what their futures hold. Employers are questioning how they can remain operational and employees are concerned about what protections they have in the workplace or while in self-isolation. Here are some of your common questions answered.
1. WHAT DOES MY EMPLOYER HAVE TO DO TO PROTECT ME AT WORK?
The Occupational Health and Safety Act (OHSA) sets out an employer’s responsibility to provide a safe and healthy work environment to workers in Ontario. OHSA requires an employer to:
- Take all reasonable precautions to protect the health and safety of workers;
- Ensure that equipment, materials and protective equipment are maintained in good condition; and
- Provide information, instruction and supervision to protect worker health and safety.
2. DO I HAVE THE RIGHTS TO REFUSE TO GO TO THE WORKPLACE?
The Occupational Health and Safety Act (OHSA) gives a worker the right to refuse work that he or she believes is unsafe to himself/ herself or another worker.
The Act sets out a specific procedure that must be followed in any work refusal. It is important that workers, employers, supervisors, members of joint health and safety committees (JHSCs) and health and safety representatives understand the procedure for a lawful work refusal.
The procedure for refusing unsafe work can be found on the Ministry of Labour website.
3. WHAT DO I DO IF I MEET THE CRITERIA FOR SELF-ISOLATION AND QUARANTINE?
As an employee, if you meet the criteria for self-isolation and quarantine, advise your employer. The employer should send you home. If anyone is exhibiting symptoms of COVID-19, they should be sent home immediately on a medical leave of absence.
4. CAN I BE TERMINATED IF I DON’T WANT TO GO TO WORK BECAUSE OF CONCERNS ABOUT THE CORONAVIRUS?
Employees do have the right to refuse unsafe work. However, the workplace has to pose a clear danger to your health and safety in order to exercise this right. The Occupational Health and Safety Act protects employees in Ontario from termination if they elect to exercise this right. The applicable section reads as follows:
No discipline, dismissal, etc., by employer
50 (1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act. R.S.O. 1990, c. O.1, s. 50 (1).
It is expected that employers will need to be more flexible during this time and attempt to accommodate the safety concerns of employees. For instance, if an employee is able to work from home it would be in the employer’s best interest to permit it.
5. IF I CAN’T WORK BECAUSE I HAVE COVID-19 OR AM EXPERIENCING SYMPTOMS, DO I STILL GET PAID?
Employers do not have to pay employees who have COVID-19 or are in self-isolation. If your employer has asked you to self-isolate because of COVID-19, again, they are not required to pay you.
If you have the ability to work remotely and can complete your usual job duties, then you are entitled to your usual pay.
6. CAN I BE TEMPORARILY LAID OFF?
Employer’s can temporarily lay off employees but there is a significant risk to employers who elect to do so as it may be treated as a termination of employment under the Employment Standards Act or the common law.
It is less clear if your employer is ordered to close by the government or other authorities. In such a case, your employer may be able to layoff employees without necessarily triggering a constructive dismissal.
7. WHAT IF I CAN’T WORK BECAUSE MY CHILD’S SCHOOL OR DAYCARE IS CLOSED?
If employees cannot work because their children cannot go to school or daycare as a result of a COVID-19 closure they can be granted Emergency Care Benefits which can provide up to $900 bi-weekly for up to 15 weeks. Discussed below.
Applicants have to meet the eligibility requirements and re-confirm the eligibility requirements every two weeks.
8. DO I HAVE TO GET A DOCTOR’S NOTE IF I AM SICK?
The Ontario government has announced that workers affected by COVID-19 won’t have to give their employers a doctor’s note or medical certificate in order to take sick leave from their jobs.
The federal government has announced that workers who are quarantined or sick from COVID-19 won’t need a medical certificate or doctor’s note to apply for Employment Insurance sick benefits.
9. WHAT ARE MY OPTIONS FOR SICK LEAVE AND/OR INCOME REPLACEMENT?
a) Use your available sick days* and/or vacation days through your employer.
* The Ontario Employment Standards Act says you can get up to 3 days of sick leave if you have worked for your employer for at least 2 weeks in a row. But it doesn’t say your employer has to pay you for those days.
Some workplaces, such as banks, telecom companies, airlines, and railways, are covered by the Canada Labour Code instead. Under that law, employees can take up to 17 weeks unpaid sick leave.
If you are not able to work because of illness, injury, or quarantine, you might qualify for up to 15 weeks of Employment Insurance (EI) sickness benefits.
Normally, to qualify for sickness benefits, you need a medical certificate signed by your doctor or approved medical practitioner. The certificate should describe your sickness and say how long you will need to be off work.
However, the federal government has announced that some of the EI rules will be changed for workers who are sick or quarantined due to COVID-19:
- Doctor’s notes won’t be required
- The normal one-week waiting period won’t apply
Note: If you work while on sickness benefits, any money you earn is deducted dollar for dollar from your benefits.
How do I Apply? Go here.
- Workers, including the self-employed, who don’t qualify for EI sickness benefits
- Workers, including the self-employed, caring for family with COVID-19, who don’t qualify for EI sickness benefits
- Parents with children who require care or supervision due to school closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.
What it does:
- provides up to $900 bi-weekly for up to 15 weeks.
How do I apply:
- Application for the benefit will available in April 2020.
Want more information about it? Click here.
Employees who are laid off may be eligible for regular EI benefits under the existing guidelines.
How Do I apply? Click here.
If you have any questions or concerns regarding the effect of COVID-19 on your employment or business contact Ertl Law for a free phone consultation toll free at 1-888-222-6184 or 416-572-9900.