Please note, this is general information, not legal advice. Each employer will have different workplace policies, employment contracts and work environments which will affect their legal obligations. This is also a rapidly evolving situation. New government regulations and employee entitlements are regularly being announced. This summary is based on information current to March 21, 2020 and is specific to Ontario.
- Health and Safety
- Quarantines and Self-Isolation
- Income Support
- General Tips
1) Health and Safety
Under the Occupational Health and Safety Act, all employers have an obligation to keep workers safe. Do your best to stay on top of the latest advisories and implement the health and safety recommendations from the public health officials in your region. (In Toronto, for example, there is an updated Fact Sheet for Employers.)
Take a look at your health and safety policy and consider implementing a policy specific to COVID-19 that sets out:
- A protocol for reporting travel and COVID-19 related symptoms
- How quarantine and self-isolation will be administered
- Sanitation and hygiene expectations
- A work-from-home policy
- The sick leave policy
2) Quarantine and Self-Isolation
If an employee is experiencing symptoms of COVID-19 or may have been exposed to the virus, you should permit the staff member to stay at home without a sick note.
If the employee is too sick to work, review your policies and the employee’s contract. Is there sick pay, personal days or lieu time? If not, you may not need to pay the employee, but you should be accommodating the absence. You might also consider providing a top-up to any government-offered income support (discussed in more detail below).
If the employee is still able to work, consider whether there are creative ways they can work from home. If not, and you can’t afford to pay the worker, the employee may say they’ve been constructively dismissed. Constructive dismissal occurs where there is a breach of a fundamental condition of employment, in this case, pay.
Having said that, these are unusual times. Courts may not be inclined to see non-payment as constructive dismissal due to employers’ health and safety obligations, as well as the financial implications of COVID-19.
Plus, you may have additional protection if your employment contracts permit you to temporarily layoff staff.
3) Shutting Down
If you’ve had to cease some or all operations, you likely have one or more employees that no longer have work to do.
Consider asking the employee(s) to take any accumulated vacation or lieu time. Once that is used up, you’ll have to decide whether you continue to pay the employee, lay them off or terminate their employment.
In the event that you can’t pay the employee, a layoff may be the preferred option if you know the closure is temporary and you intend to recall them.
Keep in mind, though, if there isn’t a temporary layoff provision in the employee’s contract, there’s a fairly high risk of constructive dismissal, particularly if the layoff is for an extended period. One way to reduce this risk is by providing the employee with a top-up, discussed below.
If you’re fairly certain you won’t be recalling an employee any time soon (if at all), you should consider terminating the employee and providing notice and/or severance.
4) Income Support
The supports provided by the federal government are in flux. For the latest income supports, check online.
As of right now, these are the plans likely to be of the most relevance for employers looking to keep some staff employed:
- Agreement between employees, employer and Service Canada
- Employees work a reduced schedule and receive EI benefits
- Program extended from 38 weeks to 78 weeks due to COVID-19
Temporary Wage Subsidy
- 10% subsidy for employee wages, up to $1,375/employee and $25,000/employer
- Currently only planned for three months
For staff that are quarantined/self-isolating, laid-off or terminated, you should direct them to these plans:
Employment Insurance Sick Benefits
- Up to 15 weeks at 55% of earnings ($573/week maximum)
- Must have worked 600 hours in the last year
- Available to employees who are quarantined, even if they’re not sick
- No waiting period
- No medical note
Note: the lack of waiting period means that benefits start immediately but not that payment is received right away.
Employment Insurance Regular Benefits
- Benefit period and required hours worked varies by region, check your area here
- Compensation is 55% of earnings up to $573/week
- One-week waiting period where employee isn’t entitled to benefits
Emergency Care Benefit
- Up to 15 weeks at $900 bi-weekly
- Available to individuals who do not qualify for EI (e.g. independent contractors)
- Must be one of the following: quarantined/sick due to COVID-19; taking care of a family member who’s sick with COVID-19; a parent with children who require supervision due to school closures
- Applications open in April through CRA
Emergency Support Benefit
- Few details available, but an allotted $5 billion to support individuals who aren’t eligible for EI and who are unemployed
- Untested (as far as we’re aware) but employees who contracted the virus at work may qualify
- Loss of Earnings benefit up to 85% of the employee’s earnings
- Covers time off work due to illness
If you decide to provide a top-up to employees for EI benefits, it will not be clawed back by Service Canada provided certain conditions are met, including registration of the top-up with Service Canada. We don’t yet have details on the impact of a top-up on either the Emergency Care or Support Benefits, but we do not expect the protocol to be different than EI.
If you provide employees with a top-up, make sure to provide the same support to all employees – whether they qualify for government programs or not.
You may also want employees to sign a document setting out their agreement that, in exchange for the top-up, they will not treat the temporary layoff as a termination.
5) General Tips
In making decisions about work-from-home policies, sick pay and top-ups, make sure you are consistent and transparent.
Act based on accepted medical information, not fear. There could be human rights concerns where an employee is treated negatively based on a perception of them having COVID-19, such as due to race, rather than based on public health information.
Need advice specific to your workplace? Contact us.