In over 30 years I have never seen one topic dominate my employment law practice like COVID-19 has over the last three weeks.
Some Ontario businesses have gone from working at 100% capacity to 0% because the Ontario government has declared these businesses as non-essential and working remotely is not possible.
Other businesses have slowed down but can continue to operate because work from home is possible for some employees.
The main question I am getting relates to temporary layoffs while the province is essentially locked down.
Many employers thought the initial lock down would be for two weeks and thereafter the province would slowly re-open and therefore delayed making staffing decisions. The premier has asked Ontarioans to stay at home if at all possible until at least the end of April so more and more employers can no longer avoid making tough staffing decisions.
How to respond to changes in your staffing needs because of COVID – 19
Depending on (i) whether the province has designated your business essential (ii) whether there is demand for your products and service and (iii) whether some or all of your workers can work at home you have a number of options.
(i) Your business maintains employment
75% wage subsidy
If you can continue to operate and some of your employees can work either at your premises (ie. an essential service) or remotely (ie. non-essential business) you may be eligible for a 75% wage subsidy up to $847 per week if your year over year revenues are down at least 30% as a result of COVID-19.
Legislation is being tabled this week. Here is a link to information on this program: https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html
10% wage subsidy
If you don’t qualify for the 75% wage subsidy then you may be eligible for a 10% wage subsidy. Here is a link to a program on this wage subsidy: https://www.canada.ca/en/department-finance/economic-response-plan.html
If employees agree, you can reduce hours and pay the employee based on prorated hours and the employee can collect EI for the balance of the week. Here is a link to information on the job sharing program: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html#h4.04
(ii) Your organization lays off employees
Employment Insurance benefits
If there is an interruption in earnings an employer must issue a Record of Employment or ROE. Laid off employees are entitled to EI benefits of up to 55% of their salary based on their insurable earnings. The maximum insurable earnings are $54,000 so the maximum EI benefit is $573 per week.
Supplemental unemployment benefits
This program allows your organization to top up EI benefits to 95% of the employee’s salary. Here is a link to information on this program: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html
Canada Emergency Relief Benefit
This new program allows workers (and others) to apply for a $2000 a month benefit. This benefit provides income protection for people who don’t qualify for EI and can provide a greater benefit than EI benefits for some workers. Here is a link to information on this program: https://www.canada.ca/en/services/benefits/ei/cerb-application.html
The three most common employment questions I am currently being asked are as follows:
- What is our legal exposure if we temporarily lay off an employee?
- Are we required to accommodate an employee’s request to stay at home with their kids or elderly parents and not attend work because of COVID-19 ?
- What happens if an employee refuses to report to work because they are concerned about their health or the health of family members because of COVID-19?
Unfortunately there is no one size fits all answer.
You should know, however, that before denying a leave of absence there is a new amendment to the Employment Standards Act that may apply.
In particular, there has been an amendment to section 50.1 of the Employment Standards Act which gives employees job protection because of a COVID-19 related illness and this new law is retroactive to January 25, 2020. In particular, prescribed infectious diseases now include diseases caused by a novel coronavirus, including Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and Coronavirus (COVID-19).
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