The COVID-19 pandemic has created unprecedented challenges and uncertainties for employers around the globe. To help you navigate through the challenges posed by the COVID-19 outbreak, we have answered some of the most frequently asked questions concerning the current pandemic and its effect on employment law.

This guide is intended to provide our clients with a general overview of COVID-19-related issues and should not be relied upon or taken as legal advice or opinion. For specific issues and questions related to your own unique circumstances please contact us directly.

Who is eligible for a wage subsidy in Ontario?

The Government of Canada has announced several solutions to help stabilize the economy during this difficult time. A seventy-five per cent wage subsidy is available to small and mid-size business owners/employers for up to three months.

You are an eligible business owner if you are: an individual, a partnership, a non-profit organization, a registered charity, or a Canadian-controlled private corporation eligible for the small business deduction.

It is important to note that in order to qualify, the business owner/employer must have an existing business number and a existing payroll account with the CRA as of March 18, 2020 and pays a salary, wage, bonus, or any other form of remuneration to an employee

Are employers permitted to measure employee temperatures at work?

Generally measuring an employee’s body temperature would be classified as a physical examination. Temperature screening involves taking someone’s temperature with a thermometer to assess the risk of that individual having COVID-19. This poses an obvious question pertaining to privacy – Is this temperature screening for COVID-19 a matter of necessity?

With the ever-increasing data and information involving COVID-19, it is evident that an infection rate is a reasonable concern. As such, it may be reasonable for an employer to implement a temperature screening mechanism.

It is important to inform the employees by way of written notification of the necessity and the administration of the temperature assessment. Additionally, the temperature screening is to be conducted in the least intrusive manner, via infrared thermometers where contact is minimal.

Is my employer permitted to notify other employees if I test positive for COVID-19?

Typically, an employer is required to keep all employee personal and health information confidential. If an employee has tested positive for COVID-19, the employer is permitted to inform the other employees of this. It is imperative that the other employees are made aware of their possible exposure.  However, due to privacy law, the employer is not permitted to disclose the identity of the employee that tested positive for COVID-19.

It is important to note that an employer can require employees to report any symptoms that may be indicative of COVID-19. These symptoms include, but are not limited to: fever, cough, shortness of breath, and/or difficulty breathing. However, a request for employees to disclose additional personal information that is unrelated to the legitimate COVID-19 related interests would not be permitted.

If an employee has a confirmed case of COVID-19, does the employer have to report it to federal or provincial health authorities?

No, an employer does not have the legal obligation to report a confirmed case of COVID-19 to provincial or federal health authorities. Instead, the medical professional that received the positive diagnosis has the obligation to report the results to the appropriate health authority.

If an employee in the workplace is diagnosed, employers may voluntarily contact public health authorities to receive advice in identifying “contacts” the employee had in the workplace. However, if an employee becomes ill from COVID-19 and it is determined that the infection occurred in the workplace or throughout the course of employment, employers may have an obligation to notify the appropriate health authorities.

employment law and COVID-19 Coronavirus

Can employees refuse to work due to fears of COVID-19?

Every employee has the right to a safe work environment. The Occupational Health and Safety Act (OHSA) addresses basic work-related rights, which include the right to refuse work that could affect the workers health and safety.

If you have reasonable grounds to believe that the physical condition of the workplace may endanger you, you should certainly address this.

If you believe the work environment is unsafe, and there is a reasonable threat of contracting COVID-19, you should first report these concerns to your employer. The employer is required to investigate these concerns. If you are not satisfied with the investigation, you must notify the Ministry of Labour, Training and Skills Development, which will designate an Inspector to investigate. During the Ministry’s investigation, safety is a priority and you may be required to work away from the office.

An employer cannot force an employee to work if that employee has exercised their right not to work.

If I exceed my sick-days while recovering from COVID-19, is my employer obligated to pay me for those exceeded days?

The Employment Standards Act states that an employee can receive up to 3 sick days per year. However, the employer is not required to pay the employee for that time off. Even if an employee does not have sufficient sick leave credits, the employer should consider advancing more sick leave days to the employee. Remember, it is a mutual goal for the employer and employees to keep everyone healthy. Not to mention a social responsibility.

A doctor’s certificate should not be requested or required by employers at this time. It is important that we keep any additional burdens off the healthcare system.

Can I terminate an employee during COVID-19?

Yes, as an employer, you can terminate an employee during the COVID-19 pandemic and the laws that applied to termination before the pandemic continue to apply. In Ontario, an employer can terminate an employee “with cause” or “without cause”.

If you terminate an employee without cause (for any reason that is not discriminatory), during COVID-19, you will still be required to give the employee reasonable notice of termination or pay in lieu of notice, in accordance with the Common Law and the Employment Standards Act.

 Should I terminate an employee or lay them off?

A termination occurs when the employer permanently ends its contract of employment with the employee and termination obligations, including reasonable notice or pay in lieu of notice will apply. A temporary layoff occurs when an employer temporarily ceases to provide work to an employee, without breaking its contract of employment.

If an employee is an asset and you want them to remain in your workforce but currently there’s no available work for them to do (because of COVID-19) and you can’t afford to pay them right now, then the best option would be to temporarily lay off that employee.

We encourage employers to be mindful of the fact that, if an employee is laid off for a period longer than the time permitted by the applicable law, the employer may be considered to have terminated the employee’s employment and termination obligations will apply.

 I’m an essential business and I have to remain open, how can I ensure the safety of my workplace and or avoid any penalties?

On April 3, 2020, the Ontario Government issued an Order further reducing the list of essential businesses and ordering more workplaces to close pursuant to its authority under the Emergency Management and Civil protection Act. This Order mandates that all businesses deemed to be essential must act in accordance with the Occupational Health and Safety Act and in accordance with the recommendations of public health officials.

To ensure the safety of your workplace you must update your safety policies so that they are in accordance with the Occupational Health and Safety Act and implement the recommendations or instructions of public health officials, which may include instructions on physical distancing, disinfecting or cleaning the workplace. Failure to implement the advice or recommendation of Public Health authorities may be an offence and you could face significant penalties.

An individual convicted of this offence may be liable to a fine of up to $100,000 and a face imprisonment of up to one year. If the convicted individual is a director or officer of a corporation, they may be liable to a fine of up to $ 500,000 and imprisonment of up to one year.

Employers can contact our employment department for assistance in determining the impact of the updated Order to their businesses.

If you are unsure whether your business is essential, the Ontario Government has set up a hotline to field inquiries (1-888-444-3659).

 Can employers implement a ban on employee travel?

Employers should restrict business-related travel. While employers do not have the authority to prevent employees from travelling during their leisure time, employers may take the following steps:

  • Advise employees to review the Government of Canada travel health notices before they undertake any travel.
  • Recommend that employees not travel internationally.
  • Advise employees of the current federal legislation requiring all international travelers to “self-isolate” upon return to Canada.
  • Mandate that all employees report all or intended personal travel to the employer.

For more information on your employment law during COVID-19, please do not hesitate to contact us at Hummingbird Lawyers LLP. Please contact our head of Toronto Employment lawyers, Amiri Dear.

Amiri Dear is an Associate in the Civil Litigation Divisions of Hummingbird Lawyers LLP with a special interest in employment and real estate-related litigation.

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