COVID-19: Frequently Asked Employment Questions

• JP Zubec
• Shawn O’Connor
• Kate Agyemang
• Sasha Willms

FAQs

1. Does an employer have to pay workers who are sick and unable to work?
2. What happens for workers who are healthy but home and unable to work because they need to care for a child while schools and daycares are closed?  
3. What if a “non-essential” business must close by government order?
4. Who qualifies for EI? 
5. What kind of Employment Insurance (EI) is available for employees who are sick or laid off?
6. a) What benefits apply to those who do not qualify for EI? What is the Canada Emergency Response Benefit (CERB)?
   1.  b) What is the Essential Worker top up
7. What about unpaid leaves from work?
8. Can an employer send an employee home because someone has or is suspected of having COVID – 19?
9. What happens to an employee’s benefits or pension contributions during lay off?
10. What happens if the business is “essential” and is choosing to stay open? Can workers refuse to come to work?
11. What happens if someone at work actually finds out they have Covid?
12. Which employers are eligible for the Canadian Emergency Wage Subsidy (CEWS) for Employers?
13. How can we, as employers, top up employees without employees having EI benefits clawed back?
    1. What is a Supplemental Unemployment Benefit Programs
    2. What is a Work Sharing Program?
14. a) Where can I get details of the government backed loans for businesses/What is the Canada Emergency Business Account (CEBA)?
    1. b)What is the Canadian Emergency Commercial Rent Assistance? 
15. Who can I call for information or to ask a question about details of the financial support from government or to ensure my company is following the rules?

Question 1 - Does an employer have to pay workers who are sick and unable to work?

• Length: In Ontario, a temporary layoff for a non-unionized employee can last:
  • up to 13 weeks of layoff in any period of 20 consecutive weeks; or 
  • up to 35 weeks of layoff in any period of 52 consecutive weeks, where:
  • the employee continues to receive substantial payments from the employer; or 
  • the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan or retirement plan; or 
  • the employee receives supplementary unemployment benefits; or 
  • the employee would be entitled to receive supplementary unemployment benefits but isn't receiving them because they are employed elsewhere; or 
  • the employer recalls the employee to work within the time frame approved by the Director of Employment Standard or within the time frame set out in an agreement with an employee. 
  • If an employee is laid off for a period longer than a temporary layoff as set out above, the employer is considered to have terminated the employee's employment. 
• Constructive dismissal: Technically, absent a provision within the employment contract that allows for layoffs, the employee could allege constructive dismissal if temporarily laid off. This is true even if the lay off is compliant with the above and is temporary. If you or your business is in this position, seek legal advice before taking this step to ensure you are not exposing your business to unnecessary liability.
  • Normally, if the employment contract did not contemplate temporary lay off (or there is no employment contact) this would amount to a constructive dismissal, which would expose the employer to damages.  However, in the context of a pandemic, the fact the relationship is temporarily suspended for public health should encourage the employee to not pursue a claim in favour of protecting a future employment opportunity with the employer.  Further, the government now ordering some business to do so is very relevant.
    • Know that while an Employer’s unilateral decision to layoff an employee during the pandemic without a lay off provision in a contract may trigger a claim for constructive dismissal, this has to be weighed against the employee’s duty to mitigate. Whether the breach will be sufficient to support a claim for constructive dismissal will be case specific.
    • Considerations such as whether the lay-off was paid, or unpaid, would likely be a relevant in determining whether this was a simple breach of the employment contract, or an outright constructive dismissal.
    • Given the ability for employers to re-employ individuals after the layoff, the practical consequences of these constructive dismissals may be perceived as minor. Employees who refuse to return when recalled, can risk being seen as failing to mitigate their damages.
  • With the paid emergency benefits brought in by the government and availability of EI, it is important to note an employee’s damages would be limited by the receipt of same. As a result, the quantum of damages for a temporary layoff may be minimal, but this should not be seen as encouraging employers to lay off employees in an arbitrary manner. Employers continue to have an obligation of good faith in the manner of dismissal. 
  • It is also possible that a Court or the Ministry of Labour could find that the employer is relieved of any financial obligation to its employees under these circumstances because the contract has become frustrated by the unforeseeable events that have brought about the end of the employment relationship.  That said, we are in uncharted territory here and this argument has yet to be tested in Court.

Question 4 – Who qualifies for EI? 

Question 5 – What kind of Employment Insurance (EI) is available for employees who are sick or laid off?

• EI regular benefits apply to people who lose their jobs through no fault of their own, such as mass layoffs or a shortage of work. EI regular benefits provide up to 14 weeks of income replacement. The one week waiting period continues to apply to regular benefits.
• EI sickness benefits provide up to 15 weeks of income replacement for employees who cannot work because of illness, injury or quarantine. If an employee is quarantined, they can apply for sickness benefits. The government has waived the one-week waiting period for claimants who are quarantined. The government has also waived the requirement of a medical note for these benefits. EI sickness benefits are available to employees who:
  • Experience at least a 40% reduction in “normal weekly earnings” due to “illness, injury or quarantine”; and 
  • Have accumulated sufficient insurable hours.

The federal government has instituted a dedicated toll-free telephone number to support enquiries about these types of benefits: 1-833-381-2725. To apply for EI benefits, you can visit the website. 

Question 6 – a) What benefits apply to those who do not qualify for EI? What is the Canada Emergency Response Benefit (CERB)? 

• residing in Canada, who are at least 15 years old;
• who have stopped working because of COVID-19 or are eligible for Employment Insurance regular or sickness benefits;
• who had income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and
• who are or expect to be without employment or self-employment income for at least 14 consecutive days in the initial four-week period.

• If applying online or by phone, Canadians will receive a payment by direct deposit or by cheque.
• If applying over the phone, Canadians can call the automated toll-free line at 1-800-959-2019. This is a dedicated line for CERB applications. Before people call, they should have their social insurance number and postal code handy to verify their identity.

Question 7 – What unpaid leaves from work are available? 

• Sick Leave – Permits employees who have worked for the employer for at least two consecutive weeks to take three days of leave per calendar year in the event of “personal illness, injury or medical emergency”. Note that if an employee takes a leave of absence under an employment contract for the same circumstances that would have given rise to the entitlement to the ESA sick leave, the employee is deemed to have taken the ESA sick leave.
• Family Responsibility Leave - If an employee has worked for two consecutive weeks with the employer, they are entitled to three days of leave per calendar year in the event of an illness, injury, medical emergency, or urgent matter involving any of the following individuals:
  • a spouse;
  • a parent, step-parent or foster parent of the employee or the employee’s spouse;
  • a child, step-child or foster child of the employee or the employee’s spouse;
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse;
  • the spouse of a child of the employee;
  • a brother or sister; and
  • a relative of the employee who is dependent on the employee for care or assistance.
• Family Caregiver Leave – This is available to provide care and support for up to eight weeks per calendar year per specified family members where a qualified health practitioner has issued a certificate stating they have a serious medical condition. There is no requirement that an employee be employed for a particular length of time to be entitled to this leave. Specified family members are the same as those noted above under family responsibility leave.
• Family medical leave – This form of leave is a longer term leave, and it is available for up to 28 weeks in a 52-week period to provide care or support to a designated individual where a qualified health practitioner issues a certificate stating that the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks.
• Critical illness leave -  This one allows an employee to take time off work to provide care and support to a critically ill family member, which is defined as someone “whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury”. Employees who have been employed for at least six (6) consecutive months are entitled to: (i) 37 weeks of leave to care for a critically ill child; and/or (ii) 17 weeks of leave to care for a critically ill adult family member – which is broadly defined.

• Declared Emergency Leave - The existing emergency leave for government-declared emergencies under section 7.0.1 of the Emergency Management and Civil Protection Act (“EMCPA”) remains in effect. This leave applies where the employee will not be performing their job duties because of both the declared emergency. This leave was recently amended to account for the pandemic issues. The amended declared emergency leave remains available if an employee cannot perform their job duties as a result of a declared emergency under the Emergency Management and Civil Protection Act (EMCPA) and:
  • because of an order that applies to the employee under the EMCPA;
  • because of an order that applies to the employee under the Health Protection and Promotion Act;
  • because the employee is needed to provide care or assistance for a specified individual (as set out below); or
  • any other reason that may be prescribed by regulation.

• Infectious Diseases Emergency Leave: This is a new leave that allows an employee to take a leave of absence without pay if the employee cannot perform his or her duties as a result of:
  • The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
  • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
  • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
  • The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
  • The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
  • The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
  • Such other reasons as may be prescribed.

Question 8 - Can an employer send an employee home because someone has or is suspected of having COVID – 19?

• Employers should be flexible and not overburden the health care system with requests for medical notes.
• Employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. 
• If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). 
• It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
• Employers may have other obligations (for example under the Occupational Health and Safety Act). 

Question 9 - What happens to an employee’s benefits or pension contributions during lay off?

Question 10 – What happens if the business is “essential” and staying open? Can workers refuse to come to work?

• Businesses should limit employee risks:  Employers have a general duty to take every precaution reasonable in the circumstances to protect workers’ health. In this environment this at least includes an obligation to:
  • assess the work environment for safety risks;
  • provide information, instruction and supervision of employees to limit safety risks; 
  • stay informed on public health guidance from all levels of government; and
  • encourage employees to raise concerns about safety risks.
• Employees can refuse unsafe work:
  • Employees can refuse work where they have reasonable grounds to believe they could be infected by attending at work, but it is a high bar.  
  • The first step for workers should be to raise any concerns with their immediate supervisor (by phone or email) and explore the best option to limit risk of exposure. 
  • The employee needs to give reasons why they are unsafe. The employer can then investigate and take steps to resolve the issue.
  • If the employer’s response does not mitigate the risk or if there is an immediate risk to personal safety, employees can refuse to work as per their protections in the Occupational Health and Safety Act. These workplace refusals should not be taken lightly. 
  • Keep in mind, not wanting to be working when the work is reasonably safe is not a legitimate workplace refusal. These requests can be nuanced in the time of Covid and we strongly recommend seeking legal advice when addressing workplace refusals related to Covid.
  • For more information about those kind of work refusals, click here.

Question 11 - What happens if someone at work actually finds out they have Covid?

• An Employer’s “Reasonable Steps” to protect employees may include:
  • Requiring workers to notify management if they or someone they have been in close proximity to, is diagnosed with COVID-19 by public health officials or has been directed to quarantine by public health officials.
  • Reminding workers to wash their hands frequently and ensure that hand sanitizer and soap are readily available for workers to use. Employers should increase signage in this regard.
  • Cancelling non-essential business travel.
  • Advising workers to carefully monitor the Government of Canada's Travel Advice before embarking on any personal travel and to keep management apprised of all travel plans.
  • Ensuring contact information for all workers is up to date.
  • Reviewing and temporarily updating employer policies on paid sick time, unpaid sick time, leaves of absences and working from home. 
• Employers should also consider offering or expanding paid sick leave for COVID-19 related absences and allowing employees flexibility to work from home, until the outbreak is contained. 

• If the illness occurred in the course of employment, employers are required to report all occupational illnesses, including COVID-19, to the Ministry of Labour, Training and Skills Development in writing within four days. You can contact the Labour Program at 1-800-641-4049 (toll free). An official delegated by the Minister of Labour will follow up with the employer to review Code requirements.
• Employers are also required to report to WSIB in writing within three days if there is reason to believe the worker contracted it during the course of their employment.
  • If in doubt if the transmission is work-related, it is likely best to report.
  • It is also advisable to report the confirmed or suspected case to the local public health unit.
• Employers are also required to notify their joint health and safety committee or a health and safety representative and a trade union, if any.
• Take note! Employers still have an obligation to ensure that personal information of employees, including health information, is kept confidential in the workplace. As such, when confirming exposure was possible to those who may have been impacted, keep information as general as possible while confirming workplace exposure may have occurred to anyone in close contact with the person with a confirmed case of Covid.

For the employee who thinks they may have or know they have contracted COVID-19, that person should:

• remain at home, away from the workplace;
• contact public health authorities to assess quarantine and/or testing as directed; 
• let their employer know if this was workplace related and stay away from the workplace until they have been cleared by public health to do so; and
• consider if they may be eligible for:
  • paid sick leave under the employee's employment contract or the employer's policies (if any);
  • short-term disability insurance benefits under group benefits programs (if any); and
  • employment insurance benefits.

Question 12 – Which employers are eligible for the Canadian Emergency Wage Subsidy (CEWS) for Employers?

Question 13 - How can we, as employers, top up employees without employees having EI benefits clawed back?

• A) What is a Supplemental Unemployment Benefit Programs?  Employers can use this to increase their employees’ weekly earnings when they are unemployed due to a temporary stoppage of work, training, illness, injury or quarantine. Payments from SUB plans that are registered with Service Canada are not considered as earnings and are not deducted from EI benefits (pursuant to subsection 37(1) of the EI Regulations).There is a one week waiting period which is meant to allow employers to continue to qualify for EI while the registered SUB plans are established. For approval, the following requirements must be met:
  • SUB plan must be registered by Service Canada through the SUB program before their effective date. Officers from the SUB program assess employers' SUB plans against the requirements set out in subsection 37(2) of the EI Regulations. 
  • An acceptable SUB plan is one that:
    • identifies the group of employees covered and the duration of the plan;
    • covers a period of unemployment caused by the following:
      • temporary stoppage of work,
      • training,
      • illness, injury or quarantine.
    • requires employees to apply for and be in receipt of EI benefits in order to receive payments under the plan;
    • requires that the combined weekly payments from the plan and the portion of the EI weekly benefit rate does not exceed 95% of the employee’s normal weekly earnings;
    • requires it be entirely financed by the employer;
    • requires that on termination, all remaining assets of the plan will be reverted to the employer or be used for payments under the plan or for its administrative costs;
    • requires that written notice of any change to the plan be given to Service Canada within 30 days after the effective date of the change;
    • provides that the employees have no vested right to payments under the plan except during a period of unemployment specified in the plan;
    • provides that payments in respect of guaranteed annual remuneration, deferred remuneration or severance pay will not be reduced or increased by payments received under the plan.

• B) What is a Work Sharing Program? These programs involved having affected employees agree to work a reduced schedule and share available work over a specified period of time. It is not something employers can simply impose - both the employer and the employee must apply to participate in a Work-Sharing program together. This a program designed to help eligible employers avoid layoffs when there is a temporary reduction in the normal level of business activity (that is beyond the control of the employer). The program is available to both federally and provincially regulated employers and its benefits are provided for eligible employees as income support.
  • To be eligible for a WSP, employers must:
    • have been in business in Canada year-round for at least two (2) years;
    • be a private business, publicly-held company or a not-for-profit organisation;
    • demonstrate that the shortage of work is temporary and beyond their control;
    • demonstrate a recent decrease in business activity of approximately 10%; and
    • submit and implement a recovery plan designed to return the impacted employees to normal working hours by the end of the program.
  • Employers may not make a Work-Sharing agreement with employees who are:
    • seasonal, or students hired for the summer or co-op term;
    • hired on a casual or on-call basis; or
    • shareholders of the business, whose shares provide them with significant decision- making power as to the direction of the company.
  • An employee’s work schedule can then be reduced between a minimum of 10% (one half day) and a maximum of 50% (three days). This work reduction can vary depending on available work, as long as the work reduction on average is between 10%-50% for the duration of the program. 
  • The program must have a minimum duration of six (6) weeks and as a result of COVID-19, may last up to 76 weeks (more than the normal 38 weeks maximum).
  • To apply, please review the details in the Applicant Guide available here:
    • Employers may call toll-free 1-800-367-5693 (TTY: 1-855-881-9874)
    • Employees may call toll-free: 1-800-206-7218 (TTY: 1-800-529-3742)

Question 14 – A) Where can I get details of the government backed loans for businesses/What is the Canada Emergency Business Account (CEBA)? B)What is the Canadian Emergency Commercial Rent Assistance?

Question 15- Who can I call for information or to ask a question about details of the financial support from government or to ensure my company is following the rules?

• Main Line: 1-800-O-Canada (1-800-622-6232)
• Canada Revenue Agency:
  • 1-800-959-8281 help with MyAccount
  • 1-800-387-1193 help with benefits

• Ontario Ministry of Labour: https://www.ontario.ca/page/ministry-labour-training-skills-development
  • Phone: 1-800-531-5551
• Rent help? Ontario Landlord Tenant Board that handles tenants’ rights: 1-888-332-3234 
  • The province has suspended evictions (approving new ones or enforcing evictions) in the current health emergency.

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