The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
Under provincial workplace health and safety laws, Ontario employers have an obligation to take every reasonable step to ensure a safe workplace. This applies to the novel coronavirus (COVID-19) as well.
You may be wondering what your employer can and cannot ask of you during this pandemic.
On March 17, 2020, Ontario enacted a Declaration of Emergency to protect the public and help contain the spread of COVID-19.
SEARCH BY TOPIC...
What is the Novel Coronavirus?
Coronaviruses are a large family of viruses that can cause illnesses ranging from the common cold to more serious respiratory infections like bronchitis, pneumonia or severe acute respiratory syndrome (SARS). They are spread mainly from person to person through close contact (touching or shaking hands). COVID-19 is the 2019 novel coronavirus, which causes a respiratory infection and originated in Wuhan, China.
Symptoms range from mild to severe and can include fever, cough, difficulty breathing and there are no specific treatments for coronaviruses.
Right to a safe work environment
With the Government of Ontario allowing some businesses to reopen, many people may feel uncomfortable returning to work as COVID-19 remains a serious health threat.
Under the Ontario Occupational Health and Safety Act (OHSA) provincial workers have the right to refuse to work in a workplace they have reason to believe is likely to endanger them. The burden of proof that the environment is unsafe rests with the employee and the employer must show they have taken reasonable steps to make the workplace safe.
It is important to document any conversations/communications you have if you are concerned about your safety.
Employees should be cautioned that an outright refusal to come into work can be construed as job abandonment, even if you have no intention of leaving your job.
Under the Canada Labour Code, employees have 3 basic rights which are the right to know, the right to participate and the right to refuse dangerous work. This applies to federally regulated employees (i.e. transportation or banking).
Freedom from Discrimination
All employees have the right to be treated equally under the Ontario Human Rights Code, and this includes treatment of employees that have or are thought to have COVID-19.
Employers have an obligation not to discriminate on the basis of race, ethnicity, place of origin, ancestry or disability. This means employees should not be subjected to any unlawful stereotyping, discrimination and harassment on one of the defined grounds for discrimination.
Employees also should not be subjected to discrimination or harassment on the basis of family status. This is a defined ground under the OHRC. This is important to take into consideration as schools and child care centres are closed and parents are trying to work from home or adapt their work schedules to take care of their children without outside assistance due to these closures.
Duty to Accommodate
The Ontario Human Rights Code stipulates that employers have a duty to accommodate employees up to the point of what is known as undue hardship.
Many employers are offering work from home options to allow their staff to continue working in a safe environment and to reduce the number of people in office.
Employees will be concerned about returning to the office after being allowed to work from home. Some employees may be concerned as they have no child care support.
Employees may be asking for flexible work arrangements in response to their circumstances and may ask for the accommodation of working from home until schools/child care centres reopen.
As noted earlier, discrimination based on family status is prohibited by human rights legislation. Employers have the duty to accommodate employees in relation to COVID-19 unless it would amount to an undue hardship based on cost, health and safety.
Canadian Emergency Response Benefit (CERB)
The CERB provides temporary income support to workers who have stopped working for a reason related to COVID-19. This benefit provides $500 per week for a maximum of 16 weeks. The government has made the benefit available from March 15, 2020 to October 3, 2020.
The CERB is intended for those who stopped working for a reason directly related to the pandemic and the following examples are given:
There may be other reasons that you may apply for the benefit, but it is important to not that you would not be eligible for this benefit if you have voluntarily quit your job.
The Government of Canada also indicates that you can apply for this benefit if you are eligible for EI regular or sickness benefits or if you are a former EI claimant who used up your entitlement between December 29, 2019 and October 3, 2020.
There are some financial stipulations that apply depending on whether you were employed by someone else/a company or self-employed including the need to show you earned at least $5,000 in 2019 or in the 12 months prior to applying. When submitting your claim you cannot have earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days within the 4 week benefit period of your claim.
You do not need to be laid off to access the CERB.
Sick Leave Policies
Will you still be paid while being off work due to the coronavirus?
Sick leave policies vary from business to business and different factors come into play with respect to an employee's right or ability to take a paid or unpaid sick leave. These factors include how long you have been an employee, what your employment contract says, what policies your employer has put in place (and whether they are a term of your employment contract), and whether you are in a unionized workplace. Subject to any workplace policy or collective agreement, if you are a member of a union, time off due to illness or quarantine can be unpaid.
Your employer may offer you the option of using your paid vacation or sick days so you can be paid for your time away from work.
You may also have access to short-term disability benefits and consider applying for that benefit if you are ill.
Ultimately, an employer cannot generally force you to work if you are clearly unwell, are under appropriate medical care, and your absence is supported by your doctor.
Employment Insurance (EI) Benefits
In the absence of company paid sick leave benefits/disability benefits, employees may apply for EI sickness benefits. Under the Employment Insurance Act, employees who face a reduction in normal weekly earnings of a minimum of 40% due to illness, injury or quarantine are eligible for these benefits (if they have accumulated the required insurance hours).
EI sickness benefits provide up to 15 weeks of income replacement and this benefit is available to eligible employees who are unable to work because of illness, injury or quarantine
As a result of COVID-19, the 1 week waiting period for EI sickness benefit has been waived for new claimants who are quarantined. People who apply for EI sickness benefits due to quarantine do not have to provide a medical certificate.
Changes to the Employment Standards Act
The Employment Standards Act protects employees from job loss when they take unpaid sick leave (for a specified number of days) in the event of personal illness, injury or a medical emergency, family responsibility leave, family medical leave, family caregiver leave and critical illness leave.
When COVID-19 was declared a pandemic and the Government of Ontario declared an emergency, it was announced that the Ontario Government would be introducing new legislation to amend the Employment Standards Act (ESA).
The Government of Ontario amended the ESA on March 19, 2020 to include another type of job protected leave known as an infectious disease emergency leave. This means that employees now have the right under the ESA to take unpaid, job-protected leave if they are unable to perform their work because of specified reasons related to a designated infectious disease.
Under the ESA, employers cannot threaten, fire or penalize an employee who takes or plans to take this type of leave. This would be to provide job protection for employees who are unable to work for reasons relating to COVID-19 such as:
An important change to note is also that employees will not have to provide a medical note if they take leave for one of the above reasons. These measures have been made retroactive to January 25, 2020.
In general, employers are not entitled to know an employee’s medical diagnosis.
As COVID-19 poses a risk to those you come into contact with, your employer may ask for some limited medical information if you exhibit symptoms or if you advise them that you are experiencing flu-like or other symptoms of the virus.
Your employer should advise you why certain medical information is needed, what information will be disclosed and to whom, and how the information will otherwise be kept confidential. It would not be unreasonable to respectfully request this information from your employer.
Your employer should only provide potentially exposed employees with enough information to obtain the necessary medical advice and treatment if necessary.
* The content of this page is intended to provide a general guide to the subject matter and does not constitute medical or legal advice.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario