Our team has collated some of the recent announcements by the federal and provincial governments, as well as answers to frequently asked questions, regarding COVID-19 and the workplace. Please note that the both the provincial and federal levels of government continue to clarify and expand on new measures being introduced as such we recommend that you either stay in touch with us or up to date on the latest government announcements for the most recent information.

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

Last Updated: April 16, 2020

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?

Other Key Resources

Our Related Articles

FAQs

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

A: No. Employers do not have to continue paying workers while they are away due to illness unless they have a contractual obligation to do so, such as a paid sick leave benefit or a short-term disability benefit. This means that workers, who are unable to work, should enquire with their employer about any income replacement benefits available or discuss creative ways to keep income coming in such as the payment of accrued vacation pay.  Otherwise, eligible employees can apply for Employment Insurance and other benefits (see Question 5, 6, and 7 below).

Question 2 – Parents: 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 about those who or are coming back from maternity but there are told they have been laid off?

A: This is effectively family status accommodation under the Ontario Human Rights Code or the Canadian Human Rights Act. Employers are obligated to provided reasonable workplace accommodations to workers with direct care-giving obligations, such as their kids being out of school as a result of the recent government-ordered shutdowns and recommendations by public health. The provincial government has enacted legislation to protect jobs and allow for unpaid leaves of absence for those employees who need to be away from work to care for children.

Employers and employees should consider whether the employee can perform meaningful work remotely, perhaps with added flexibility in their day to account for childcare realities. If so, the employee can work from home and continue their normal income during this period of time.  However, keep in mind, employees still must be able to perform the essential duties of their job during this time to get paid and workers are not entitled to their preferred accommodation. Rather, the law only requires the employer to provide a reasonable accommodation up to the point of undue hardship. There may be a variety of reasonable accommodations available and the parties should stay open to all options. The goal is to help sort out the best way to get things done in these challenging circumstances.

Parents who cannot work due to caregiving, including those who are returning from maternity or parental leave will likely qualify for the CERB. See question #6 for further information.

Question 3 – What if my job/company was a “non-essential” business that must close by government order?

A: If a business is forced to close by government order, the employer can temporarily lay-off the employees and the employees can apply for EI benefits. In regards to temporary lay offs, although Ontario’s Employment Standards Act, 2000 (the “ESA”) contains temporary layoff provisions, the ESA does not give employers a general right to lay off employees – it needs to be set out in the contract or collective agreement or done with consent of the employee. Otherwise, a temporary layoff could give rise to constructive dismissal claims at common law. Context matters as discussed below and in these times, anyone thinking of advancing a claim for constructive dismissal may want to seek legal advice as there are several important considerations to keep in mind, including the employee’s duty to mitigate their damages.

Key Considerations to Keep in Mind: 

• 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? 

A: Whether you qualify for EI will depends on regional rate of employment, and the number of hours worked in the last 52 weeks. Depending on the regional rate of unemployment, employees will need to have accumulated between 420 to 700 hours of insurable employment during the last 52 weeks. The government recommends people apply as soon as possible to find out if they qualify; waiting more than four weeks could disqualify access to those benefits. If approved, the maximum amount paid out for EI is $573 a week.

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?

A: There are multiple types of EI which may apply if an employee is laid off because of the COVID-19 pandemic:

Paid Benefits like EI’s sickness benefits and regular benefits.

• 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.

For the latest information on benefits, please visit https://www.canada.ca/en/services/benefits.html for more information.

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

A:  Paid Leaves – CERB – The Federal Government introduced the Canada Emergency Response Benefit (CERB) on March 25, 2020. The CERB provides $2,000 a month, for up to four months. This taxable benefit is available to employees who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures. The CERB would apply to wage earners, as well as contract workers and self-employed individuals who would not otherwise be eligible for Employment Insurance (EI). The CERB is paid every four weeks and is available backdated to March 15, 2020 until October 3, 2020.

Who can apply: The CERB will be available to workers:

• 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.

The 2019 income of at least $5,000 may be from any or a combination of the following sources: employment; self-employment; maternity and parental benefits under the Employment Insurance program. The CERB is only available to individuals who stopped work and are not earning employment or self-employment income as a result of reasons related to COVID-19. If you have not stopped working because of COVID-19, you are not eligible for the Benefit.

As of April 15^th, 2020, the expanded eligibility rules for the CERB are as follows:

• People can now earn up to $1000 per month and still collect the CERB;
• Seasonal workers who have used all their EI regular benefits and cannot return to their seasonal work because of COVID-19 can now apply; and
• Workers who have used all their EI regular benefits and cannot return to work or find work because of COVID-19 can now apply as well.

Once you apply, the government expects that you can get your payment in 3 business days if you have signed up for direct deposit, and approximately 10 business days if you haven’t signed up for direct deposit. If your situation continues, you can re-apply for a payment for multiple 4-week periods, to a maximum of 16 weeks (4 periods).

How to apply: Applications for the CERB started the week of Monday, April 6, 2020. There are two ways to apply: online with CRA My Account or by phone with an automated phone service.

• 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.

Both phone and online services will be available 21 hours a day, seven days a week. Both services are closed from 3 a.m. to 6 a.m. ET for maintenance.

Whether you apply online or by phone, the CRA wants to provide the best service possible to everyone. To help manage this, the CRA has set up specific days for you to apply. Please use the following guidelines:

Day to apply for the Canada Emergency Response Benefit 

If you were born in the month of	Apply for CERB on	Your best day to apply
January, February or March	Mondays	April 6
April, May, or June	Tuesdays	April 7
July, August, or September	Wednesdays	April 8
October, November, or December	Thursdays	April 9
Any month	Fridays, Saturdays, and Sundays

Do not forget to re-apply: If you have applied an received the CERB, ensure that you reapply for the next four-week window as of April 17^th, 2020.

Note: The CERB replaces the Emergency Care Benefit and Emergency Support Benefit which were announced on March 18, 2020. We expect it will be expanded further to cover more Canadians shortly. 

For the latest information on benefits, please visit https://www.canada.ca/en/services/benefits.html for more information.

Unpaid Leaves: There are also more kinds of unpaid leaves that afford workers more job protection – See Question 7 for details.

b) What is the Essential Worker top up

What is the Essential Worker top up? The government announced essential workers who earn less than $2,500 per month will be eligible to receive a ‘top up’ from the Government to enable them to earn additional funds similar to what they would receive if they had only been collecting the CERB. Details of who will qualify for this top up and how it will be processed are expected to be announced shortly. It is expected to at least apply to front line health workers and workers in long-term care facilities, but details have yet to be confirmed.

Question 7 – What unpaid leaves from work are available? 

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. The job-protected nature of these leaves provides a promise of re-employment to employees absent due taking any one of the following types of unpaid leave.

Existing

• 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.

Amended/New

• 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?

A. Yes, but they cannot discriminate against someone with, or suspected to have the illness. Discrimination including harassment against any persons or communities related to COVID-19 is prohibited when it involves a ground under human rights legislation, in the areas of services, housing, employment, vocational associations and contracts.

In Ontario, the Code protects against discrimination based on 17 grounds, whether perceived or otherwise, including disability, ethnic origin, place of origin and race. The OHRC’s policy position is that the Code ground of disability is engaged in relation to COVID-19 as it covers medical conditions or perceived medical conditions that carry significant social stigma.

This means that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.

Employer absenteeism policies must not negatively affect employees who are unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19. Similarly, an employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

We recommend employers and employees keep talking and see what makes the most sense for everyone during this evolving period. The goal is to give employees flexible and safe options, such as working remotely where feasible, as either good practice or as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19. Employers should take requests for accommodation in good faith.

• 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?

Generally speaking, unless continued payment of an employee’s benefits or pensions is set out in the employment contract or collective agreement, an employer will not be obligated to continue to pay benefits or pension plan contributions if an employee is temporarily laid off. However, some providers are setting up exceptional responses to these exceptional circumstances and both workers and employers are encouraged to inquire with their benefit provider directly.

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

For those essential businesses staying open, wherever possible, workers should be working from home.  Employers should be taking all reasonable preventative measures to keep the job site clean and safe. This could include increased disinfections and taking all precautions to limit unnecessary physical contact between people.

Keep in mind these considerations:

• 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?

Both employers and employees have obligations to ensure the health and safety of their workplace under the Workers Compensation Act and the Occupational Health and Safety Regulation. These obligations include taking all reasonable steps to protect employees from a contagion such as COVID-19.

For employers, know:

• 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.

Once an infection is confirmed:

• 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.

Remember, your health matters most, so put it first. 

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

A. The Temporary 75% CEWS will be available for Canadian businesses, large and small, that have experienced decline in revenue due to COVID-19. Eligible businesses include partnerships, individuals and corporations which are not publicly funded. Previously the government said that businesses would have to show a 30 per cent drop in revenues compared to this time last year, which some start-ups and new businesses were not be able to do. Now, companies can now compare their lost revenue to the average of what they made in January and February of 2020, and will only need to show a 15 per cent decline in March.

For the months of April and May, businesses will need to demonstrate 30 per cent losses once again. Employers will also be allowed to measure their revenues either based on as they are earned or as they are received. Businesses will be required to re-apply for each month and prove their eligibility and also attest that they are doing “everything they can” to pay the remaining employee wages.

More specifically, this subsidizes the first $58,700 normally earned by employees – representing a benefit of up to $847 per week. The program will be in place for a period of 12 weeks, from March 15-June 6, 2020.

Businesses will be able to benefit immediately from this support by reducing their remittances of income tax withheld on their employees’ remuneration. More specifically, employers will be able to apply through a CRA portal using their My Business Account. Payments will be available in about six weeks.

For now, the take away is an eligible employer’s entitlement to this wage subsidy will be based entirely on the salary or wages actually paid to employees. All employers would be expected to at least make best efforts to top up salaries to 100% of the maximum wages covered.

10% subsidy

For those companies that are not eligible for the above for whatever reason, the 10% one would still be another option. Those organizations that do not qualify for the Canada Emergency Wage Subsidy may continue to qualify for the previously announced wage subsidy of 10 per cent of remuneration paid from March 18 to before June 20, up to a maximum subsidy of $1,375 per employee and $25,000 per employer.

Note: Employers cannot get the Wage Subsidy for workers who are getting CERB.

For more information, please see the government’s site here.

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

A. Consider both Supplemental Unemployment Benefit Program (SUB) though Service Canada or a federal Work Sharing Programs (WSP).

• 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.

Note: Employers who provide top-ups to maternity, parental (including adoption) or caregiving benefits are separate and do not have to be registered with Service Canada.

For more information, see the government site here.

• 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?

A. The Prime Minister has announced government backed guaranteed interest-free loans of up to $40,000 for small businesses, which will be interest-free for the first year and up to $10,000 of which may be forgivable. This is called the Canada Emergency Business Account (CEBA). The goal is to help cover their operating costs during a period where their revenues have been temporarily reduced, due to the economic impacts of the COVID-19 virus.

To qualify, these organizations will need to demonstrate they paid between $20,000 to $1.5 million in total payroll in 2019. Repaying the balance of the loan on or before December 31, 2022 will result in loan forgiveness of 25 percent (up to $10,000). To ensure that small businesses have access to the capital they need to see them through the current challenges, this initiative will be implemented by eligible financial institutions in cooperation with Export Development Canada (EDC). Business owners can apply for support from CEBA through their banks and credit unions.

b) Canada Emergency Commercial Rent Assistance (CECRA)

The new Canada Emergency Commercial Rent Assistance program will help small businesses cover their rents for April, May, and June. The assistance is being rolled out in collaboration with the provinces and territories as rent policy is largely provinces and municipalities’ responsibility. The program will provide loans, including some forgivable loans, to commercial property owners who are then to either lower or forgo the rent for small businesses during these months. This is the newest government initiative and was announced April 16, 2020, with a promise of more details to come.

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?

Federal

• 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

Provincial

• 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.

Should you require assistance with any related workplace concerns, please reach out to a member of our Employment Group directly.

We are continuing to closely monitor the evolving COVID-19 situation and will provide further updates on this blog. Should you require assistance with any related workplace concerns, please reach out to a member of our Employment Group directly.

Other Key Resources:

• Essential Businesses: The list of what the provincial government considers essential workplaces can be found by clicking here.
• Apply for EI: To apply for EI benefits, you can visit this website.
• Unsafe Work Refusals can be found here.

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