Monthly Archives: March 2020

COVID-19: Temporary Layoffs

See these other posts for more COVID-19 Employment Law information:
»» Webinar & Slide presentation: COVID-19 Ontario Workplace Issues: March 16
»» EI Sickness Benefits and Work Sharing: March 17
»» New Emergency Care Benefits and Supports: March 18
»» Amendment to Ontario Employment Standards: March 21
»» Supplementary Unemployment Benefit Plan (SUB Plan): March 21
»» Mobilizing Canadian Industry to Fight COVID-19: March 23
»» List of Ontario essential workplaces: March 24
»» COVID-19 Emergency Response Act March 26
»» Canada Emergency Wage Subsidy March 30

As COVID-19 continues to have an impact on all of our lives, I know that you are concerned about your business and also about the wellbeing of your employees in the face of unprecedented circumstances.

Temporary layoffs of employees is one of the options you may be considering for your company to help cope with uncertain circumstances.

In the notes below I have outlined the key legal considerations when dealing with temporary layoffs.

You may also have heard of changes to the Employment Insurance Sickness Benefits and the federal Work-Sharing program. I will be sending you information about these programs in another email later today. In the meantime, you may find it helpful to visit the Employment Canada COVID-19 information on this page:  https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

I hope you find this guidance and information helpful and as always, I am available to answer any questions you may have about Temporary Layoffs or any other employment matter.

What is a Temporary Layoff?

Generally, a layoff is a period when an employer temporarily ceases to provide work and (in most cases) compensation to an employee.

Parties treat the employment relationship as ongoing, with the understanding that work and compensation may resume in the future.

In Ontario, a layoff week is a week where the employee earns less than one half of the amount that they would earn at their regular rate in a regular week or their average earnings for the period of 12 consecutive weeks prior to the layoff period.

Length of a Temporary Layoff

Temporary layoffs are just that – temporary, and indications at this time are that layoffs necessitated by COVID-19 will fit into this criteria. If they do exceed the statutory limit, then an employer will generally be deemed to have terminated an employee’s employment unless an exception applies.

Key statutory time limits are as follows:

  • Temporary layoffs cannot exceed (a) 13 weeks in any period of 20 consecutive weeks, or (b) more than 13 weeks in any period of 20 consecutive weeks but less than 35 weeks in any period of 52 weeks where:
    • the employee continues to receive substantial payments from the employer, or
    • the employer continues to make payments for benefits or a legitimate retirement or pension plan, or
    • the employee receives supplementary unemployment benefits, or
    • the employee would be entitled to supplementary unemployment benefits but isn’t receiving them because they are employed elsewhere, or
    • the employer recalls the employee within a time frame approved by the Director of Employment Standards or as set out in an agreement with an employee not represented by a trade union, or where the employee is represented, as set out in an agreement with the trade union.
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NOTE: You may be exploring the options of reduced business hours that do not meet these legal requirements for a Temporary Layoff. If you are considering options such as this, I encourage you to contact me to ensure that legal requirements and obligations will be met. 

Advance Notice Requirements

There are no advance statutory notice requirements before an employee can be placed on a temporary layoff.

Payment of Employees while on Temporary Layoff

  • Subject to an employment agreement, policy or collective agreement that says otherwise, layoff periods are generally unpaid. 
  • Employees may also, on a voluntary basis, use their vacation time during a period of a temporary layoff to continue to receive pay.
  • Employees on temporary layoff are eligible for Employment Insurance.

Click here for a downloadable template that you can adapt for use when notifying employees of a temporary layoff.

As mentioned earlier, if you are considering the use of vacation time or other options that fall outside the definition of Temporary Layoffs, I encourage you to contact me to ensure that legal requirements and obligations will be met and that you are not open to any future liability.

Are Employers Required to Continue Benefit or Pension Contributions?

In most cases, absent contractual terms to the contrary, employers are not required by statute to continue benefits or pension plan contributions during temporary layoffs. 

This may vary depending on the terms of employment, including applicable employment contracts, collective agreements, employer policies and third-party plans. Please contact me if you have questions about your specific circumstances.

Although it is not required that benefits be continued, I generally recommend that employers consider continuing benefits for the period of the temporary layoff  and do so as long as the employee makes his/her co-payment if there is one.

If the employer makes benefits and pension contributions to the laid-off employees, the allotted time for a temporary layoff may be extended. However, the employee must agree to these payments in lieu of a firm limit on the length of the layoff. Again, please contact me if you require further information about the specifics of your circumstances

Where an employment agreement, workplace policy or collective agreement provides for a greater right to benefit or pension continuance, those contractual terms will prevail.

Do Obligations Change Depending on Number of Employees Temporarily Laid Off?

In Ontario there are no mass or group termination considerations for temporary layoffs, however, should the layoffs extend beyond the allotted time mass termination entitlements may apply. 

What Else Should Employers Know?

A Record of Employment must be issued for each of the employees that are on a temporary layoff to enable the employee to receive Employment Insurance benefits. 
Click here for a downloadable template that you can adapt for use when notifying employees of a temporary layoff.

Employers are encouraged to provide timely, transparent and ongoing communications to their employees in respect of any temporary layoffs, including with respect to any anticipated recall dates or extensions to the layoff period. 

Employers will want to ensure that they have up to date contact information for each affected employee so that communications are effective.

Where temporary layoffs are not otherwise expressly permitted by contract or collective agreement, a layoff may result in the risk of constructive dismissal claims or grievances, even if intended to be temporary.

As you are well aware, many things are changing rapidly in every aspect of our business and personal lives. I will keep you informed of all changes related to Employment and Labour Law and am available to answer any questions that you may have.

I remind and encourage you to observe the recommendations outlined by our public health authorities and hope that you, your employees, families and loved ones stay safe and healthy.

You may find these online resources helpful in keeping up to date with the COVID-19 situations in Toronto, Ontario and Canada:

Toronto: https://www.toronto.ca/home/covid-19/

Ontario: https://www.ontario.ca/page/2019-novel-coronavirus

Canada: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html

Webinar: COVID-19 Ontario Workplace Issues

See these other posts for more COVID-19 Employment Law information:
»» Temporary Layoffs: March 17
»» EI Sickness Benefits and Work Sharing: March 17
»» New Emergency Care Benefits and Supports: March 18
»» Amendment to Ontario Employment Standards: March 21
»» Supplementary Unemployment Benefit Plan (SUB Plan): March 21
»» Mobilizing Canadian Industry to Fight COVID-19: March 23
»» List of Ontario essential workplaces: March 24
»» Canada Emergency Wage Subsidy March 30

As you are aware, the circumstances and government responses to the COVID-19 situation in Ontario have been evolving over the past week. The video below captures a presentation I made to employers on March 15, 2020 and provides an overview regarding applicable legislation, rights and obligations.

The content of the video can also be viewed and/or downloaded as a slide presentation in .pdf format. (opens in new window). The .pdf format does not include the questions and answers from the webinar. They can be heard in the video at approximately 35:00 into the presentation.

The video presentation also includes links to important sources of information which I have included at the bottom of this post.

I hope you find this information helpful, and remind and encourage you to observe the recommendations outlined by our public health authorities with the hope that you, your employees, families and loved ones stay safe and healthy.

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Corona virus in the workplace: FAQs

With the increased news coverage and awareness of the coronavirus, now more commonly referred to as COVID-19, you may be receiving questions from some of your employees, and you may have questions yourself about best practices in these times.

The upcoming school break season may also be of concern if employees are planning to travel to other locales.

I have prepared a FAQ sheet with some of the most common questions that employers have asked me over the past few weeks:

  • Do I need to have a ‘Pandemic Policy’?
  • Is an employee required to report relevant symptoms of COVID-19?
  • What should we do if an employee reports relevant symptoms?
  • Can an employee refuse to work if they believe that there may be exposure to COVID-19 in the workplace?
  • Can we require disclosure if an employee plans to travel to a presently  affected area?
  • What can/should we do if an employee does visit a presently affected area?
  • If an employee is required not to attend work, do we have to pay them?
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I hope you will find the FAQ sheet informative and helpful.

If you have any other questions about COVID-19 in your workplace, or any employment law questions in general, please do not hesitate to get in touch with me.

Frequently Asked Questions

Q: Do I need to have a ‘Pandemic Policy’?

There is no obligation to have an official ‘Pandemic Policy’ but there are practices outlined below that you can put into place to help maintain a safe workplace. I also suggest that employees be informed about your company policies regarding:

  • guidelines for every-day precautions
  • reporting of relevant symptoms
  • travel to affected areas
  • quarantines and isolation periods
  • procedures and policies in case of what may be perceived to be unsafe working conditions

General guidelines for every day precautions

The COVID-19 situation provides an excellent opportunity to advise and remind employees about a variety of items. 

  • Both employers and employees are responsible for ensuring the safety of their workplace. As an employer, you should make extra efforts to be aware of employee behaviour and general health.
  • Frequent handwashing is identified as one of the most effective ways to prevent the spread of infection. Consider posting additional handwashing signs and ensure that there is sufficient soap and hand sanitizer. Other good practices are to encourage all employees to sneeze and cough into a sleeve and to avoid touching eyes, nose or mouth.
  • Note: There have been news reports of shortages of hand sanitizer in retail stores, but this should not be a cause for concern. Health Canada advises that ‘washing hands often with plain soap and water for at least 20 seconds’ is an effective precaution.
  • If possible, institute routine cleaning of frequently-touched surfaces in the workplace, including countertops and door knobs
  • You may wish to let employees know about a downloadable poster for home use that provides a colourful graphic reminder of these practices. It is available at  https://files.ontario.ca/moh-coronavirus-pec-poster-en-2020-03-09.pdf
  • The Public Health office of the City of Toronto has an excellent downloadable .pdf of Guidance for Workplaces/Businesses and Employers: https://www.toronto.ca/wp-content/uploads/2020/03/9538-Fact-Sheet-for-Workplaces-Non-Healthcare_final.pdf
  • Both the Government of Ontario and the Government of Canada host dedicated web pages with the most up-to-date information on the COVID-19 outbreak. The information is available in multiple languages.
  • Health Canada:  https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html
  • Health and Wellness Ontario: https://www.ontario.ca/page/2019-novel-coronavirus

You may find it useful to appoint one or more coordinators who will be responsible for tracking and communicating the latest developments of COVID-19. 

* * *

Reporting of relevant symptoms

Q: Is an employee required to report relevant symptoms of COVID-19?

As noted above, both employers and employees are responsible for ensuring the safety of their workplace and as an employer you may find it necessary to implement reasonable policies and precautions that help ensure that safety. Requiring any employee to report relevant symptoms of COVID-19 is a reasonable precaution.

It is also important to inform employees of what the relevant symptoms may be. Health Canada advises that symptoms are similar to a cold or flu and have included:

    •    fever
    •    cough
    •    difficulty breathing
    •    pneumonia in both lungs

While fever and cough are associated with many infections, it is important at this time to be aware of employees who exhibit these symptoms, as it may effect relations with other workers and with you as the employer.

Q: What should we do if an employee reports relevant symptoms?

If an employee has relevant symptoms of COVID-19, has been in direct contact with someone who has symptoms of COVID-19 or has reason to believe they may have been in contact with someone who has symptoms of COVID-19 they should be denied access to work and directed to contact their doctor and local public health unit.

Information about local health units can be found here: http://www.health.gov.on.ca/en/common/system/services/phu/locations.aspx

In order to protect your workplace from the spread of Coronavirus, employees should not feel that they will be penalized for failing to come to work. An unpaid leave may cause employees to attend work, which could result in a potential contamination of your workforce. 

Depending on the specifics of the situation with your employee(s) and workplace, in these circumstances you may wish to consider

  • Offering employees time off under sick leave or short-term disability.
  • Allowing employees to use vacation days, or lieu days.
  • enabling the employee to work from home

If you have any questions on specific actions beyond these, please feel free to contact me, as each situation is unique and there may be a variety of factors that influence a suggested course of action.  

Q: Can an employee refuse to work if they believe that there may be exposure to COVID-19 in the workplace?

Employees who believe that a condition in the workplace is likely to endanger their health or safety can refuse to work under the Occupational Health and Safety Act.

You may be advised by one of your employees that they are concerned about the possibility of contracting the coronavirus in the workplace and may, in some cases, refuse to work. 

An employer cannot threaten to discipline an employee who refuses to work on this basis, and must comply with employer obligations under applicable occupational health and safety legislation.

  • the employer must investigate the situation immediately and attempt to work out a satisfactory resolution with the employee. 
  • If that is not possible, the employer must notify a Ministry of Labour inspector or officer, as required by provincial legislation.

* * *

Travel to a ‘presently affected area’

Q: Can we require disclosure if an employee plans to travel to a presently  affected area?

An employer cannot prohibit employees from visiting any area during their personal time.

You may wish to inform your employees that an updated advisory of affected areas is available on the Government of Canada’s Travel Advice and Advisories web page: https://travel.gc.ca/travelling/advisories

As of March 10, The Public Health Agency of Canada (PHAC) is recommending that Canadians avoid all cruise ship travel.

Employees should also be made aware that farms or live animal markets are also considered high risk areas.

Q: What can/should we do if an employee does visit a presently affected area?

If an employee reports travel to an affected area you can inquire as to whether they have followed the guidelines set out by Health Canada and Health and Wellness Ontario:

Travellers who return from Hubei province (China) or Iran, where returning travellers are advised to self-isolate should:

  • contact their local public health unit within 24 hours of arriving in Canada
  • stay at home and avoid close contact with others, including those in their home, for a total of 14 days from the date they left Hubei province (China) or Iran
  • contact Telehealth Ontario at 1-866-797-0000 or their local public health unit if they experience symptoms of the 2019 novel coronavirus

Travellers who return from areas under a travel health advisory for COVID-19 should:

  • monitor themselves for symptoms of the 2019 novel coronavirus for 14 days after leaving the affected area

NOTE: The status of these locations may change or more locations may be added. The latest information can be found on the Government of Canada’s Travel Advice and Advisories web page: https://travel.gc.ca/travelling/advisories

It is also reasonable to ask employees to monitor their health with particular attention after any out of province travel, or after visiting a farm or live animal market.

* * *

Quarantines and Isolation Periods

Q: If an employee is required not to attend work, do we have to pay them?

I suggest you contact me if any employee or person related to an employee is placed in isolation or quarantine. Each situation is different. 

The regulations are clear in the case of an employee contracting Coronavirus or isolation/quarantine of an employee or family member:

  • Ontario employees who have accumulated at least two (2) weeks of service with an employer and are unable to attend work for Coronavirus-related reasons (including quarantine) are entitled to take unpaid sick leave under the  “Ontario ESA”) for up to three (3) days.
  • Additionally, employees may qualify for up to three (3) days of family responsibility leave to care for an ill family member.

Coronavirus should fall within the parameters of an employer’s sick leave or short-term disability policies. However, employees who are quarantined without Coronavirus-related symptoms may not necessarily be eligible for benefits, depending upon the wording of the specific plan.

Employers should ensure that policies on various sick and caregiver leaves are readily available to employees, and that employees understand they will not be penalized for absenteeism related to controlling the spread of Coronavirus.

If in doubt about the applicability of a leave, employers should exercise good judgment in encouraging symptomatic employees to stay home, rather than risk contamination of the workplace.

It is my sincere hope that your workplace follows the preventive measures outlined by the public health authorities and that you do not need to address the issue of an employee contracting the COVID-19 virus or coming into close contact with someone who has.

Prevention is literally the best cure, but should  any situation arise in which you would like more information and guidance regarding the employment law aspects, please do not hesitate to contact me.