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FAQ: COVID-19 in the Workplace

FAQ: COVID-19 in the Workplace

FAQ: COVID-19 in the Workplace

TABLE OF CONTENTS

Managing COVID-19 in the Workplace and Remote Work Options
Self-Isolation or Quarantine
Hiring
Temporary Layoffs
Terminations
Financial Assistance for Employers
Financial Assistance for Employees – Employment Insurance, Canada Emergency Response Benefit and Record of Employment

Managing COVID-19 in the Workplace and Remote Work Options

1.   How do I know if my organization is permitted to continue operating during this time?

On March 23, 2020, the government of Ontario released a list of essential businesses that are permitted to be open during this time. This list includes businesses such as those that manufacture medical supplies or provide materials for the construction industry. Businesses that are not essential include clothing retailers, theaters, libraries, etc. However, please note, this list is subject to change.

For a comprehensive list of essential businesses in Ontario, please refer to the link below:

https://www.ontario.ca/page/list-essential-workplaces

2.   Are employers permitted to check an employee’s temperature prior to allowing them inside the workplace?

Yes – testing for temperature is consistent with workplace occupational health & safety obligations to take every precaution reasonable in the circumstances for protection of workers. With that said, it is recommended that the employer use the least invasive method and ensure that employee privacy is maintained.

3.   Are we required to provide employees with personal protective equipment (PPE) if they are required to attend work?

No – but you should stress preventative measures (hand, respiratory, and environmental hygiene and social distancing). It is expected that every organization will take all necessary measures available to them in order to protect their workers against exposure.

For several professions (e.g., Healthcare, Construction, etc.), there are health and safety measures in place that mandate the use of applicable Personal Protective Equipment (PPE).

4.   Can an employee refuse to attend work due to COVID-19?

Employees have the right to refuse work if they believe there is a risk in the workplace to their health or safety. In the workplace, this typically involves concern over the usage of machines and/or work processes. However, in this unprecedented time, an argument may be made that risk of exposure to COVID-19 is a reasonable health and safety concern.

In the event of a work refusal, it is your duty to place the refusing employee in a safe location (either working or not). You are then required to investigate the health and safety concern with your Health and Safety Representative (“HSR”) or Joint Health and Safety Committee (“JHSC”), as applicable. If you determine that there is a legitimate risk, you must act accordingly.  If it is determined that there is no health and safety risk, but the employee still refuses to work, you will need to contact the Ministry of Labour, to allow them to perform their own investigation. If the Ministry of Labour confirms that there is no risk, the refusing employee may then be disciplined. However, we recommend contacting an employment lawyer and/or HR professional at this stage to ensure you are aware of your options and any associated risks.

5.   Can I discipline and/or terminate an employee who refuses to attend work due to fear of contracting COVID-19?

Many employees may be at a higher risk of contracting or spreading the virus to the population. In order to keep this from happening, employers should be flexible with their staffing options. For example, if an organization can reduce risk by implementing rotating shifts or by providing better personal protective equipment, those are both great options.

With that said, employers should only turn to progressive discipline as a last resort. They should attempt to discover alternative measures to mitigate risk and reduce exposure for their employees.

6.   My employees are expressing concern because they are constantly dealing with clients and the public, what should I do?

For clients, keep lines of communication open. Ask your clients for information on what policies and procedures they have in place to mitigate their risk and request that they disclose any possible exposure. Limit public interaction as reasonably possible (e.g. use online video chat platforms, conference calls, and instant messaging).

In terms of the public, if applicable in the circumstances, provide your employees with personal protective equipment including masks, gloves, etc. Provide plenty of hand sanitizer and wipes for employee use. Practice social distancing as much as possible (for example, limit the number of customers that can enter a store at one time). Post signs at the door asking customers who have been exposed to not enter the store. Finally, stay calm and up to date – relay the facts and new information to your employees as much as possible.

7.   Are employers obligated to provide a Work from Home (“WFH”) option to employees?

Employers are not obligated to provide a work from home option. Working from home needs to be assessed on a case-by-case basis. For example, for many employees, there is no possible work from home option. However, as a best practice, we recommend implementing work from home options for as many employees as reasonably possible.

Essential businesses that remain open and could operate virtually, are strongly encouraged to implement a remote work policy during this phase of the pandemic.

If an employee in your workplace has informed you of exposure or secondary exposure to COVID-19, you have the right as an employer to request a remote work arrangement where possible.  If this is not possible, the employee should be isolated for 14 days and will not be working during this period to ensure the health and safety of your workplace.

Self-Isolation or Quarantine

1.   Can an employer require employees to advise us if they have been diagnosed or have been exposed to someone who has been diagnosed with COVID-19?

Yes – you can ask employees to report such incidents discreetly and virtually. Emphasize that this is necessary for you, as the employer, to maintain the health and safety of your staff and clients (if applicable).

2.   How does an employer respond to an employee who has indicated that they believe they have contracted COVID-19?

You will direct the employee to self-quarantine and do the self-assessment online. Once they complete the self-assessment, they will be advised by Public Health on next steps.

Link to Ontario Self-Assessment:

https://www.ontario.ca/page/2019-novel coronavirus?utm_source=Google&utm_medium=CPC&utm_campaign=COVID-19

3.   If an employee is self-isolating, due to concerns of exposure for 14 days, is the employer obligated to pay them for this time away from work?

There is no legal requirement to pay employees during the quarantine period. The employer should issue a Record of Employment (ROE) and that employee will be eligible for Employment Insurance (EI) or, commencing April 6, 2020 and backdated to March 15, 2020 – the Canadian Emergency Response Benefit (CERB).

If your organization is set up to work remotely, you can consider the employee working from home during the quarantine period. In the event that the quarantine period is considered unpaid time-off, your employees may qualify for EI or the CERB.

4.   What would a quarantine protocol look like in a situation where one of our staff is diagnosed with COVID-19 and has worked in proximity with other staff in our workplace?

It is very important to be proactive and continuously communicate with your staff about their requirement to notify you if they become aware of their exposure to the virus. Ask your employees to inform you without coming in to work if they have been exposed through travel, through household members, or if they are exhibiting symptoms.

In a situation where an employee realizes their exposure following close contact with other employees, we recommend that you first assess the person’s exposure to others. It may be the case that the whole company is quarantined, and certain operations are shut down for a period of two (2) weeks or more to ensure the health and safety of your staff.

5.   What protected leaves are available to employees related to the current pandemic?

On March 19, 2020, the Ontario Employment Standards Act, 2000 (the “ESA”) was amended with the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to include a new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies.

This amendment to the ESA provides job-protected leave for employees who are in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures, or to care for other relatives.

Other job-protected statutory leaves outlined under the ESA include:

    • Family Medical Leave;
    • Family Caregiver Leave;
    • Critical Illness Leave;
  • Sick Leave; and
  • Family Responsibility Leave.
Hiring

1.   What does an employer do if an offer has been made and the start date for the new hire is during an office shut down or remote work arrangements are in place?

Contact the employee and explain the situation. Given the current circumstances you will either be deferring the start date or requesting that the employee hold off resigning from their current employer if that is the current situation.  As a last resort, you may need to revoke the offer while acknowledge there may be legal risks to doing so.

2.   What does an employer do around hiring and sending out offers when they are unsure of how long current business continuity plans are in place (i.e. all staff are working remotely)?

In these circumstances, you may want to consider a hiring freeze. Alternatively, when you find the right candidate, make an offer with a start date that is “to be determined.”

Temporary Layoffs

1.   We need to shutdown or scale back our organization due to government mandate and/or the current economic climate. What are our options in regards to our employees?

Take advantage of government support in order to avoid layoffs as much as possible:

  • Work-Sharing Program
  • Canada Emergency Wage Subsidy of up to 75%
  • Canada Emergency Business Account
  • Reduction in hours and pay and/or rotating shifts*
  • Layoffs*

*Please speak to your HR representative and/or Employment Lawyer prior to implementing any of these options.

Please see section below on “Financial Assistance for Employers for more information or visit the link below for the government website on available support:

https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#Support_for_Businesses

2.   Is it legal to layoff our employees during this time in Ontario?

If you have a Temporary Layoff clause explicitly outlined in your employment agreements and/or a Temporary Layoff policy in your Employee Handbook, you are likely to be protected.  However, in the absence of a specific contractual right to implement a Temporary Layoff there will be a legal risk for a constructive dismissal (i.e. a fundamental change of a term and condition of employment).

However, while there is a known legal risk with Temporary Layoffs, in the circumstances Canadian employers may be able to justify on the following grounds.

a. There is a worldwide pandemic occurring. The Temporary Layoff of staff is due to legitimate business reasons like thousands of other organizations across Canada.

b. This is an unprecedented time. In the ideal scenario, if you are doing a Temporary Layoff you would provide as much notice as possible. If you cannot do this, you need to look at factors such as age, service, compensation, availability of similar employment, etc. Depending on these factors, it may increase your risk for legal action (e.g. Constructive Dismissal), however given that this is an unprecedented time, your risk may be lower than normal.

c. There is no reasonable alternative. It would be better to try to find opportunities for employees to work from home, use their Vacation/Personal Days (if applicable) or move to a reduced work week (3-4 days)/shift work before triggering a Temporary Layoff. However, if these options are NOT available, you need to protect your company and manage cash-flow not necessarily for today but for the future.

Please note, there is a legal risk when laying off employees and each employer should consult with their Employment Lawyer and/or HR professional prior to taking any action.

3.   What are some best practices for temporarily laying off employees?

According to the Ontario Employment Standards Act, 2000, an employer may only perform a temporary layoff if the employee’s employment agreement has the relevant clause or the organization has a temporary layoff policy. However, we believe there are extenuating circumstances that may impact this decision (please refer to preceding question).

An employer may lay off employees for a period of:

  • up to 13 weeks in a 20 week period; or
  • up to 35 weeks in a 52 week period if the employer continues to contribute to employee benefits/pension.

If an employer will be laying off employees, the best practice is to provide as much written notice to the employee as possible. The notice should provide information on when the layoff period will commence, date of recall (if known, but not necessary), and whether benefits will be continuing during this time.

An employer should meet with employees individually, where possible, via teleconference and explain the impact to their employment. Once meetings with individual employees are completed, an announcement should be made to the remaining staff about what has transpired. It is important, at this point, to keep all your employees (those that have been laid off and those still working) updated continuously on the status of your organization and continued operations, as well as the COVID-19 pandemic.

Please note, there is a legal risk when laying off employees and each employer should consult with their employment lawyer and/or HR professional prior to taking any action.

4.   Employees are asking if they can use their entire year vacation time now instead of being laid off even though they have not accrued this vacation. What are my options?

It is up to the employer’s discretion to allow employees to exercise this option. However, employees earn vacation pay on the hours they have worked. As such, if an employee has not yet earned this vacation entitlement, the employer may end up overpaying in vacation pay.

If an employer chooses to proceed with this action, we recommend providing the employee with a written agreement that stipulates if the employee exits the Company prior to actually earning the vacation they have used during this period, the Company reserves the right to deduct these monies from their wages as employers are unable to do so without an employee’s written consent.

5.   What happens with our group benefits program during temporary layoffs if it is a 50/50 split program?  Is the company required to pay 100% of the program cost to keep it going?

You are not obligated to pay 100% of the benefits or continue to provide benefits during a temporary layoff. However, if you do decide to extend benefits, you should continue the same arrangement you had prior to the layoff. Furthermore, in addition to being a best practice during these challenging times, continuing benefits allows employers to significantly extend the duration of a temporary layoff.

Terminations

1.   When does a layoff become a termination?

This will depend on the province you are operating in. In Ontario, a layoff is deemed a termination if an employer does not recall an employee after 13 weeks in a 20 week period (without group benefits) and 35 weeks in 52 weeks (with group benefits or pension continuance).

2.   Upon termination, what is an employer in Ontario responsible to pay?

Again, this will depend on the province you are operating in. In Ontario, employers are responsible for providing notice or pay in lieu of notice, as well as statutory severance, if applicable. Please note, this does not include any common law entitlement.

Please consult with an employment lawyer for further support on this matter.

3.   Can employees be terminated during COVID-19?

The simple answer is yes, although it will be considered a relatively high-risk termination given the current circumstances.

Please consult with an employment lawyer for further support on this matter.

Financial Assistance for Employers

What government options are available for small to mid-size organizations?

1.   Canada Emergency Wage Subsidy (CEWS)?

The CEWS was introduced to help businesses avoid layoffs and bring employees back to work. This program will be in available between March 15, 2020 to June 6, 2020 for eligible employers who have experienced a reduction in gross revenue of 30% or more in March, April or May when compared to the same month(s) in 2019.

a.    Does my business qualify for the CEWS?

Employers are eligible to apply for CEWS if they:

  • are individuals, taxable corporations, partnerships consisting of eligible employers, SRED companies, non‑profit organizations and registered charities; and
  • saw a drop of at least 30 per cent of their revenue, assessed based on gross revenue, in the eligible periods:
    • determined by the change in an eligible employer’s monthly revenues, year-over-year, for the calendar month in which the period began.

b.    How does the CEWS Work? How is the subsidy calculated?

Employers will be able to apply through their Canada Revenue Agency (CRA) business account online and funds will be available within six (6) weeks.

However, please note the following:

  • Companies need to re-apply each month;
  • Employers will be required to attest that they are doing “everything they can” to pay the remaining 25% of employee wages;
  • Employers should set up a direct deposit to receive funds more quickly; and
  • This benefit applies to all employees, even those on Pregnancy Leave.

The subsidy would be the greater of:

  1. 75% of the amount of remuneration paid up to a maximum benefit of $847 per week; and
  2. The amount of remuneration paid, up to a maximum benefit of $847 per week or 75% of the employee’s pre-crisis weekly renumeration, whichever is less

Eligible remuneration may include: wages, salary, and any other renumeration for which the employer would generally be required to withhold or deduct amounts to remit to the CRA.  This does not include severance pay, or other taxable benefits such as use of a personal vehicle.

c.    How does CEWS interact with Canada Emergency Response Benefit (CERB)?

An employer would not be eligible to claim CEWS for salary paid to an employee in a week that falls within a 4-week period for which the employee is receiving the CERB.

d.    How does CEWS interact with the 10% Temporary Wage Subsidy?

Employers who are eligible can apply for both the 75% wage subsidy and the 10% wage subsidy.  However, any 10% subsidy paid in a specific period would generally reduce the amount available to be claimed by the CEWS.

For further information regarding CEWS please see the attached link.

https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html

2.   Tax Filing for Employers

Deferral of income tax amounts due by employers until August 31, 2020

https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#Support_for_Canadians

3.   Supplementary Unemployment Benefits (SUB) Plan

This plan is designed to allow employers to top up employees pay who are affected by a layoff, up to a maximum of 95% of their previous earnings in conjunction with EI payments.

https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/payroll/payroll-deductions-contributions/special-payments/supplementary-unemployment-benefit-plan-subp.html

4.   Work Sharing

Work-Sharing is an adjustment program designed to avoid layoffs when there is a temporary work shortage that is beyond the control of the employer. The measure provides income support to employees eligible for Employment Insurance benefits who work a temporarily reduced work week while their employer recovers.

https://www.canada.ca/en/employment-social-development/services/work-sharing.html

Financial Assistance for Employees – Employment Insurance, Canada Emergency Response Benefit and Record of Employment

1.   What benefit should my employee apply for: Employment Insurance (EI) or the Canada Emergency Response Benefit (CERB)?

The Canada Emergency Response Benefit (CERB) was initially rolled out for those who would not be eligible for Employment Insurance (EI) – such as those who are self-employed/have not worked the qualifying hours. However, the CERB now temporarily replaces all COVID-19-related applications for EI, for those that have applied on or after March 15, 2020.

2.   What is included in the CERB?

The CERB applies to individuals who are or expect to be without employment or self-employment income for at least 14 consecutive days in a four-week period because of COVID-19. All approved individuals will receive $2,000 per month (taxable income) for up to four (4) months and there does not appear to be any consideration regarding an income level.

3.   What are the eligibility criteria for the CERB?

Qualifications include:

  • The individual had to have an income of at least $5,000 in 2019 or the 12 months preceding their application for the CERB;
  • The individual stopped working for reasons related to COVID-19; and
  • The individual earns no income for at least fourteen (14) consecutive days within the 4-week period.

4.   What are the eligibility criteria for CERB? Do individuals have to apply for the CERB?

Each payment of the CERB covers a 4-week period, beginning March 15, 2020. When individuals apply, it is for a single payment for the 4-week period. If their current circumstances continue, they can apply for an additional 4-week period, up to a maximum of 16 weeks (4 periods in total). For the initial application, eligible individuals are those who expect to have no income or have not had income for at least fourteen (14) consecutive days.  For the subsequent periods, they expect to have no employment income.

5.   Will an employee be eligible for EI if they are ill or quarantined due to COVID-19?

Currently, the Federal government is directing all affected individuals to apply to the CERB. If someone applied to EI on March 15, 2020 or later, their claim will automatically be transferred to the CERB.

6.   What code do I use when filling out the Record of Employment (ROE)?

  • For temporary layoffs, use Code ‘A’ – “Shortage of Work.
  • For individuals that have been diagnosed or are in quarantine, use Code ‘D’ – “Illness or injury.
  • For parents staying home from work to care for their children, use Code ‘N’ – “Leave of absence.

DO NOT add any comments in the comments section. Adding comments will remove the ROE from the automation process and will slow down the process.

7.   How do I substantiate a Code ‘N’ on a Record of Employment?

As the situation currently stands, there is no requirement for employees to present documentation in order to take time off to care for their kids.