It’s been almost six months since the COVID-19 pandemic hit Ontario. During this time the government has introduced a number of new income support programs and new laws. There was no play book for handling this crisis.
The federal government introduced CERB which provides $ 2,000 a month to recipients and the CEWS which provides a 75 percent subsidy to employers who experienced a significant decrease in revenue year over year. The CERB is scheduled to end this month and it looks like it will be replaced by a modified Employment Insurance (EI) system that may end up looking more like a guaranteed income program. The CEWS was expanded with new rules and is scheduled to wind up in December.
Schools are opening in September with a combination of in-class and online learning.
Although businesses can reopen offices, many employers have decided to stick with remote working where possible until at least the end of the year. I think partly because a recurrence of COVID is expected in the next month or two.
Many of the employment law questions that arose in March persist.
Under the Ontario Employment Standards Act (the “ESA”) a temporary layoff is deemed not to be a termination, whereas at common law one is generally a termination, and failure to give notice of a temporary layoff is generally a wrongful dismissal. There are exceptions. The ESA was recently amended to extend the duration of a temporary layoff to January 2, 2021. As employers continue temporary layoffs, I expect to see more wrongful dismissal litigation. One issue that will be argued is whether the common law should change; that is, should the common law mirror the ESA with respect to temporary layoffs? The common law changes over time and the current unique and extraordinary circumstances may trigger a change in the law relating to a temporary layoff.
Accommodating requests on the basis of family status
When children are at school full-time and there is adequate childcare most employees can manage a balance between work and family responsibilities with minimal disruption of work obligations. Although schools and childcare centers are open (albeit with fewer students) many children are still not at school. And if the number of COVID cases increases significantly as a result of a recurrence, I expect the province to shut down schools and workplaces again.
Employers have had six months to get used to people working from home and responding to accommodation requests. This involves setting up home offices, using videoconferencing and cloud-based technology to collaborate on work. It also involves a more flexible workday where some employees take time off during the day to tend to parental responsibilities like supervising online learning. I expect this trend to continue which will minimize the disruption caused by school closures.
Health & safety concerns and COVID-19
Some employees have underlying physical medical conditions that make them more susceptible to COVID. And some employees have developed mental disabilities including anxiety related to the fear of contracting COVID. This may result in requests for enhanced health & safety measures at the workplace or a request to work remotely. These cases must be addressed on a case by case basis.
Other employees do not agree with public health recommendations such as wearing masks. In my experience these employees tend to adopt very clever legal positions and if an employer overreacts it can get itself into legal hot water.
As long as employees have an economic safety net and the impact of COVID on their employer is significant I think most employees on temporary layoff will adopt a wait and see approach. Most employment lawyers have a large stable of clients who are deciding whether to pull the trigger and commence litigation. Those laid off in March still have about 18 months to decide whether to commence a court action.
I think we will know within a month or two whether schools will be closed because of a recurrence of the COVID pandemic. In the meantime, employers will do their best to try to accommodate parent requests for remote work or changed hours or leaves of absence the best they can. I think most parent/employees who are denied their requests will wait and see for a few months before commencing litigation, especially if income security programs are in place. They generally have a year to commence an application under the Ontario Human Rights Code. If the employee is terminated and they have a right to a job protected leave under the ESA, I expect many of these employees will commence legal proceedings very quickly. So proceed with caution in this scenario.
I don’t think there are as many anti-mask proponents in Canada as in the U.S. on a per capita basis, but this issue arises here. Where local governments have legislated mandatory mask wearing these employees should be able to be managed. Otherwise, employers need to be careful how to respond. For employees who don’t want to attend work because of a disability the employer needs to comply with the duty to accommodate and follow both the procedural and substantive aspects of the duty to accommodate.
These are very trying and challenging times. Many senior decision makers don’t know if their organization will survive COVID. These decision makers are often on edge. In these circumstances, a request from an employee for a form of accommodation can trigger a visceral reaction. The challenge is to fight this instinct, take a breath and get some advice. HR and legal professionals can help you get past these legal problems so you can focus on the more existential business challenges you are facing.
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