COVID-19: Frequently Asked Employment Questions
Our team has collated some of the most recent announcements by the federal and provincial governments, as well as up to date answers to frequently asked questions, regarding COVID-19 and the workplace. Please note the situation is evolving rapidly. In the coming weeks, it is likely that both federal and provincial levels of government may introduce additional measures/legislation that could impact employee rights/obligations. We will continue to update this page accordingly. If, however, you have specific questions about your workplace entitlements, please contact one of our employment lawyers directly.
- Does an employer have to pay workers who are sick and unable to work?
- 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?
- What if a “non-essential” business must close by government order?
- Who qualifies for EI?
- What kind of Employment Insurance (EI) is available for employees who are sick or laid off?
- What benefits apply to those who do not qualify for EI? What is the Canada Emergency Response Benefit (CERB)?
- What about unpaid leaves from work?
- Can an employer send an employee home because someone has or is suspected of having COVID – 19?
- What happens to an employee’s benefits or pension contributions during lay off?
- What happens if the business is “essential” and is choosing to stay open? Can workers refuse to come to work?
- What happens if someone at work actually finds out they have Covid?
- Which employers are eligible for the Temporary Wage Subsidy for Employers?
- How can we, as employers, top up employees without employees having EI benefits clawed back?
- Where can I get details of the government backed loans for businesses?
Recent Government Announcements:
- Employees under medical investigation, supervision or treatment for COVID-19;
- Employees acting in accordance with an order under the Health Protection and Promotion Act;
- Employees in isolation or quarantine;
- Employees acting in accordance with public health information or direction; and
- Employees needing to provide care to a person for a reason related to COVID-19, such as a school or daycare closures.
- Temporary boosts to the Canada Child Benefit payments.
- An Emergency Care Benefit (replaced by CERB) of up to $900 bi-weekly for up to 15 weeks to provide income support to workers who must stay home and do not have access to paid sick leave including:
- Workers, including workers who are self-employed, who are sick, quarantined, or who have been directed to self-isolate but do not qualify for Employment Insurance (EI) sickness benefits.
- Workers, including workers who are self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick, but do not qualify for EI sickness benefits.
- EI-eligible and non EI-eligible working parents who must stay home without pay because of children who are sick or who need additional care because of school closures.
- An Emergency Support Benefit delivered through the Canada Revenue Agency to workers who are not eligible for EI and who are facing unemployment. Replaced by CERB.
- Assistance for those with low and modest incomes with a special top-up payment under the Goods and Services Tax (GST) credit.
- Waiving, for a minimum of six months, the mandatory one-week waiting period for EI sickness benefits for workers in imposed quarantine or who have been directed to self-isolate, as was previously announced on March 11.
- Waiving the requirement for a medical certificate to access EI sickness benefits.
- Extending the tax filing deadline for individuals to June 1, and allowing all taxpayers to defer, until after August 31, 2020, the payment of any income tax amounts that become owing on or after March 18thand before September 2020.
- Provide eligible small businesses with a 10 per cent wage subsidy for the next 90 days, up to a maximum of $1,375 per employee and $25,000 per employer. This would be for corporations eligible for the small business deduction, as well as not-for-profit organisations and charities. This temporary wage subsidy was amended March 27, 2020 to 75 per cent and we are waiting for further details.
- Implementing a six-month, interest-free, moratorium on Canada Student Loan payments for all individuals who are in the process of repaying these loans.
- It was also announced that GST and HST payments, as well as duties and taxes owed on imports, will be deferred until June 2020.
Question 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?
Question 3 - What if a “non-essential” business must close by government order?
- 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.
- 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 business to do so is very relevant.
- Normally, where a lay-off lasts more than 13 weeks in a 20 week period, then the employer will have pay the employee termination pay in accordance with the ESA and damages under the common law if the employer is not protected by an employment contract that limits liability in these circumstances. If these closures last more than 13 weeks, we anticipate further government announcements to deal with same.
- 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 contracted 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?
- To apply for EI benefits, you can visit the website. Afterwards, you can apply to have the one-week waiting period waived by calling the government's toll-free number 1-833-381-2725.
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.
Question 6 – What benefits apply to those who do not qualify for EI? What is the Canada Emergency Response Benefit (CERB)?
Question 7 – What about unpaid leaves from work?
The Employment Standards Act, 2000 (“ESA”) provides for a number of unpaid, job-protected leaves of absence of varying duration that could apply in the event of a wide-spread outbreak of COVID-19, including the existing leaves and new leaves brought in for this pandemic.
- 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.
The declared emergency leave is unpaid and will be available for the duration of the declared emergency.
- 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 is choosing to stay 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. 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. 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. 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.
- Employers are required to report all occupational illnesses, including COVID-19 if the exposure occurred in the course of employment 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 – keep information as general as possible while confirming workplace exposure.
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 Temporary Wage Subsidy for Employers?
- non-profit organizations, registered charities, or Canadian-controlled private corporations (CCPC);
- have an existing business number and payroll program account with the CRA on March 18, 2020; and
- pay salary, wages, bonuses, or other remuneration to an employee.
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,
- 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: https://www.canada.ca/content/dam/canada/employment-social-development/migration/documents/assets/portfolio/docs/en/work_sharing/Work_sharing_applicant_guide.pdf
- Employers across Canada may call toll-free 1-800-367-5693 (TTY: 1-855-881-9874)
- Employees across Canada may call toll-free: 1-800-206-7218 (TTY: 1-800-529-3742)
- To be eligible for a WSP, employers must: