The purpose of this post is to address some of the frequently asked questions we have received from employees in the face of the COVID-19 pandemic relating to government support, including Canada Emergency Response Benefit, Employment Insurance, and Canada Emergency Wage Subsidy. The information below is up to date as of April 27, 2020 and is intended to provide general information, not legal advice.
CERB and EI
Should I take CERB over EI?
If you became eligible for Employment Insurance (“EI”) regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit (the “CERB”).
You retain your eligibility to receive EI after you stop receiving the CERB, and the period that you received the CERB does not impact your EI entitlement.
On the other hand, if you became eligible for EI regular or sickness benefits prior to March 15th, your claim will be processed under the pre-existing EI rules.
If I have already applied for EI, but want CERB instead, do I need to apply for CERB or does it switch automatically?
If you have stopped working because of COVID-19 on or after March 15, 2020, and have already applied for EI Regular or Sickness benefits, you do not need to apply for the CERB. Your application will automatically be transferred to the CERB program.
If you have not already applied for EI benefits and have stopped working due to COVID-19, you should apply for the CERB, whether or not you are eligible for EI. The CERB is available for the period from March 15, 2020 to October 3, 2020.
Starting April 6, 2020, there is a single portal to assist you with the application process. From this portal, you will then be guided through your responses to a few simple questions to complete the application best suited to you (i.e. eligibility for EI benefits or not).
Canadians who are eligible for EI, but who are not eligible for CERB or who need to apply for specialized EI benefits including parental benefits, can continue to apply for EI.
If I was rejected for EI, am I able to apply for CERB?
Yes, and as long as you meet the eligibility criteria for CERB, you should be able to receive the payments under CERB.
Will EI backpay me for the time I have been out of work?
Yes, as long as you were eligible for EI during that period and as long as you filed your EI application in a timely manner. You should apply for EI benefits as soon as you stop working. You can apply for EI benefits even if you have not yet received your Record of Employment (“ROE”). If you delay filing your claim for benefits for more than four weeks after your last day of work, you may lose benefits.
I will make more from EI than CERB but the government has switched me over to CERB. Can I choose to go back to EI or is it the government’s decision?
No, you cannot elect to receive EI benefits instead of the CERB. The government has decided to automatically switch anyone who became eligible on or after March 15th over to the CERB system. However, you retain your eligibility to receive EI after you stop receiving the CERB, and the period that you received the CERB does not impact your EI entitlement.
What happens if I am laid off and there is no work for 13 weeks? Can I still get EI beyond that?
Yes, depending on the circumstances.
You can receive EI from 14 weeks up to a maximum of 45 weeks, depending on the unemployment rate in your region at the time of filing your claim and the amount of insurable hours you have accumulated in the last 52 weeks or since your last claim, whichever is shorter.
The Employment Standards Act, 2000 provides that the temporary layoff period can last up to 13 weeks generally speaking, and in specified circumstances, can last up to 35 weeks. The specified circumstances that can extend the layoff period to up to 35 weeks includes, amongst other things, where the employer continues to provide substantial payments to the employee, benefits continuation, or supplementary unemployment benefits.
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. Generally, the employee will then be entitled to termination pay (and any other entitlements upon termination, as applicable).
How long will EI take to pay? My application still says “under review”.
The government website indicates that “Service Canada is processing all of these claims as quickly as possible.” You should follow up with Service Canada directly if you face any issues.
I have already begun receiving my EI but am not unsure if I should have applied for CERB instead. What should I do?
You do not need to reapply for CERB. If you became eligible for Employment Insurance prior to March 15th, your claim will be processed under the pre-existing Employment Insurance rules.
If you became eligible for EI regular or sickness benefits March 15th or onward, your claim will be automatically processed through the Canada Emergency Response Benefit.
If I’m an independent contractor, will I be eligible for CERB?
Yes, as long as you meet the eligibility criteria for CERB.
How will taking EI now affect maternity claims in the future?
At the time that you apply for maternity or parental benefits, if you received EI benefits in the past 52 weeks, you may not be eligible to receive the maximum number of weeks of maternity or parental benefits.
However, if you’ve worked 600 hours since your last claim, you could start a new claim. Contact Service Canada to find out what’s best for your situation.
Although this question does not ask about the CERB, it should also be noted that you cannot receive maternity or parental benefits at the same time as the CERB. If you cannot return to work due to COVID-19 following your maternity/parental leave, you would be considered to have stopped working due to COVID-19. If you meet the other eligibility requirements you may receive the CERB.
If my employer brings me back from lay off on reduced hours, am I able to make my maternity leave claim?
You can apply for maternity/parental leave benefits and a Service Canada agent will review your situation to determine your eligibility. Generally speaking, in order to be eligible, you need to demonstrate the following:
- you’re pregnant or have recently given birth when requesting maternity benefits
- you’re a parent caring for your newborn or newly adopted child when requesting parental benefits
- your regular weekly earnings from work have decreased by more than 40% for at least one week
- you accumulated 600 insured hours* of work in the 52 weeks before the start of your claim or since the start of your last claim, whichever is shorter (*As an example, 600 hours are equivalent to 20 weeks of work at 30 hours a week)
Working reduced hours might mean that you do not have the requisite number of insurable hours to qualify for maternity/parental benefits. In that case, you can still apply and speak with Service Canada about your unique circumstances to see if you can access those benefits.
Interaction between EI and CEWS
What if I have applied for EI, but then my employer ends up getting the Canada Emergency Wage Subsidy?
For the Canada Emergency Wage Subsidy (the “CEWS”), there are eligibility criteria for both employers and employees. Accordingly, even if your employer is eligible for the CEWS, it does not mean that all employees within the organization will be included when calculating an employer’s entitlements.
The CEWS is available with respect to remuneration paid to employees other than those who have been without remuneration for 14 or more consecutive days in the applicable eligibility period, i.e., from March 15 to April 11, from April 12 to May 9, or from May 10 to June 6.
In order to be eligible for EI, one of the criteria is that you must have been without work and without pay for at least seven consecutive days in the last 52 weeks.
If you applied for EI benefits and are eligible to receive the same, but you have been without remuneration for 14 or more consecutive days in the eligibility period, then you would not be an eligible employee under the CEWS program. It may be that you are on a temporary layoff or on a leave of absence. In these circumstances, if your employer wants to take advantage of the CEWS, the employer will need to recall you back to work from layoff or offer to pay you even where you are unable to work (e.g. if the physical location is closed or there is no work for you to do). Should your employer decide to do that, then you can continue to remain at home while being reinstated to the employer’s payroll.
Significantly, if you have been laid off or furloughed, you can become eligible for CEWS retroactively, as long as the employer rehires you and your retroactive pay and status meet the eligibility criteria for the claim period. Your employer must rehire and pay you before you are included in the employer’s calculation for the wage subsidy.
Rehired individuals may have received, or continue to receive, the Canada Emergency Response Benefit (CERB). Depending on the specific situation, these individuals may be required to repay some or all of the amounts they received. More information to come on this shortly. CERB recipients who already know they will need to repay their CERB payment can access the steps needed to return or repay the benefit.
Canada Emergency Wage Subsidy (CEWS)
How will I receive my 75% salary from the wage subsidy? Do I get paid by my employer or by Service Canada for the Wage Subsidy?
Your employer will pay you with their own money, which could come from company revenues, a loan or some other source. Your employer will then apply to the government for the CEWS (i.e. your employer will be reimbursed for salaries already paid by the employer). So when your employer receives the money from the government through the CEWS, the employer can then use that to pay future salaries or on something else.
Employers will be able to apply for the CEWS through the Canada Revenue Agency’s My Business Account portal as well as a web based application, which opened on Monday, April 27th.
Do I keep the tax deduction from the 75% or 25% I receive from the Wage Subsidy if my employer uses it?
Under the Wage Subsidy, you still have to pay into CPP, EI premiums and tax. The employer will pay you as usual, including making deductions from your wages for CPP, EI and income tax. However, employers who keep employees on payroll, but do not have work for the employees to do, can get a refund on the EI and CPP premiums that they have to pay.
If I am paid hourly and the hours fluctuate, how is the 75% from the Wage Subsidy determined?
For new employees, the CEWS provides 75% of the amount of remuneration paid to the employee, up to a maximum of $847 per week. For existing employees (i.e. employees employed before March 15, 2020), the CEWS will be calculated as the lesser of:
- The amount of remuneration paid to the employee, to a maximum of $847 per week, and
- 75% of the employee’s baseline weekly remuneration.
An employee’s “baseline weekly remuneration” is defined in the legislation as “the average weekly eligible remuneration paid to the eligible employee by the eligible entity during the period that begins on January 1, 2020 and ends on March 15, 2020, excluding any period of seven or more consecutive days for which the employee was not remunerated.”
How can I approach my employer about the Wage Subsidy if they have not contacted us? We have already been laid off.
You can email your employer about the CEWS and see if your employer is planning to apply for it. There are eligibility criteria for both employers and employees. Even if the employer is eligible for CEWS, it does not necessarily mean that this will be applicable for all employees within the organization.
Does my employer have an obligation to apply for the subsidy?
Are employers obligated to pay the remaining 25% for the Wage Subsidy?
No, employers are not legally obligated to pay the remaining 25%. However, prior to the new CEWS legislation coming into force, the government clearly stated that employers are expected to make their best efforts to pay the remaining 25% to bring the salary to pre-crisis levels. Unfortunately, the legislation has not provided us with clarity on this aspect of the CEWS.
If I can do my job from home, can my employer force me to come into the office and work during the pandemic? And if I refuse to go in, can they fire me?
As is often the case, the answer is it depends.
Employers must take all reasonable precautions to ensure the safety of workers. As a part of this obligation to maintain health and safety, it may be appropriate to explore alternative work arrangements, including allowing employees to work remotely or encouraging customer or client meetings to be held by phone or video rather than in person.
In Ontario, employees are entitled to refuse work if they feel it is unsafe. If that happens, an employer is required to investigate the situation and advise the employee whether the safety risk has been resolved or not. If the employee continues to believe there is a safety concern, the Ministry of Labour can be asked to come in to investigate. Recently, several provinces including Ontario have increased the resources available to respond to and introduce safety concerns as a result of the COVID-19 pandemic.
There must be reasonable and legitimate grounds for the employee to believe there is a safety risk in the workplace. A fear of getting sick, if there are no current incidents in the workplace or other risk factors, is likely not sufficient. However, in a situation where another employee has been diagnosed with COVID-19 or where the employee is interacting regularly with the public, there may be a legitimate concern that needs to be addressed by the employer to ensure the health and safety of all workers.
In addition, you may have legitimate safety concerns as a result of your personal health or circumstances (for example, if you are immunocompromised). In these cases, the employer will likely have a duty to accommodate you up to the point of undue hardship.
If you refuse to work, but are not otherwise eligible to take a leave of absence under employment standards or human rights legislation, then you may be disciplined for such refusal and, eventually, may be deemed to have abandoned your employment. While employers should be respectful of legitimate concerns, in the absence of a legitimate reason to be absent from work, employees are expected to carry out their duties.
If your employer insists that you must come into the office and work during the pandemic, you can speak to your employer and see if work from home is actually possible. If you refuse to go in because you feel it is unsafe, and they fire you with or without cause, then you may have a claim for wrongful dismissal and may be able to allege reprisal and/or discrimination, as appropriate. In any event, you should seek legal advice to understand your rights and obligations.
What if the employer does not provide proper PPE upon returning?
Employers must take all reasonable precautions to ensure the safety of its workers. As a part of this obligation to maintain health and safety, in some environments, it may be appropriate for employees to be provided with protective equipment such as gloves or face masks. Employers in certain industries, such as health care, may have greater obligations, such as providing proper PPE as well as training on how to wear PPE.
If your employer does not provide proper PPE upon returning to work, and you have reasonable and legitimate grounds to believe this will pose a safety risk in the workplace, you are entitled to refuse work. Upon your refusal to work due to safety concerns, your employer is required to investigate the situation and advise you whether the safety risk has been resolved or not. If you continue to believe there is a safety concern, the Ministry of Labour can be asked to come in to investigate. Recently, several provinces including Ontario have increased the resources available to respond to and introduce safety concerns as a result of the COVID-19 pandemic.
What if I am called back to work but I have no childcare options for my children?
Under the Ontario Human Rights Code, your employer has the duty to accommodate you on the basis of family status up to the point of undue hardship. Undue hardship is a high threshold to meet. Employers are obligated to provide reasonable accommodation, and not the employee’s preferred accommodation.
If you request accommodation based on your childcare obligations, your employer should not deny your request arbitrarily.
The employer’s duty to accommodate may include allowing you to stay home on an unpaid job-protected leave from the workplace. Employees who must remain at home to care for children or other relatives due to COVID-19 have access to a job protected leave of absence pursuant to the Ontario government’s amendments to the Employment Standards Act, 2000. This leave is identified as “Emergency leave: declared emergencies and infectious disease emergencies”.
Employers can of course explore alternative options, including allowing employees to work remotely or to vary their hours to share caregiving responsibilities with other family members. An employer does not have to invent a different job or create work for an employee in order to allow them to work remotely. However, as a best practice, an employer should ensure that they have explored all options to determine whether remote work is possible in the circumstances.
Record of Employment (ROE)
What if my employer is not compliant in providing an ROE?
Your employer is obligated to provide an ROE when there is an “interruption in earnings”. If you are still receiving payments, then that might be a reason why they have not provided an ROE. If there is an interruption in earnings (i.e. you are not getting paid), you can ask your employer if they have filed the ROE. It might be the case that they have already sent your ROE directly to Service Canada. In that case, you do not need to ask for a paper copy. You can view your ROE electronically with a My Service Canada Account.
If your employer is still not providing the ROE to you or to Service Canada, you should fill out a Request for Record of Employment with Service Canada, who will try and obtain the ROE on your behalf.
When I am recalled to work, can the employer change my working hours or days?
It depends. Generally speaking, employers have the management right to make reasonable changes to the employment relationship. However, if the employer makes a unilateral and substantial change to a fundamental term of your employment, including your working hours, then that constitutes a constructive dismissal. Thus, depending on the situation, you could be entitled to significant damages if your employer makes certain changes. The key is the change must be unilateral (i.e. you did not accept the change and the employer imposed it upon you), the change must be substantial, and it must relate to a fundamental term of your employment (working hours or days would generally be considered to be a fundamental term).
Is a loss of 25% of my hours when being recalled to work a constructive dismissal?
Probably. A constructive dismissal occurs when an employer makes a unilateral and substantial change to a fundamental term of your employment. Hours of work is generally considered to be a fundamental term of employment. So assuming that the change is unilateral (i.e. you did not accept the change), the only question is whether the change would be considered substantial. The answer is, most likely.
By Nadia Zaman
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