Written by David Doorey
I spent some time trying to map the current state of the law in relation to COVID19 and the workplace. I wanted to come up with a flowchart using plain language as much as possible to explain what is a quite legally complicated system of rules.
Here is the Flow-Chart in Word format I came up with, with active links. This deals with Ontario workers, focusing on employment standards mostly and the new federal emergency fund, with some common law and human rights mixed in. I have left out occupational health and safety angles.
I post the chart here for information purposes, but please don’t rely on it as legal advise. If you have questions about your specific case, speak to a lawyer or government officials. The purpose of the chart is to provide a very simplified version of the law at a moment in time, as I understand the rules (which may not be perfectly accurate!). There’s still a lot of debate among reasonable lawyers as to how the rules will apply to different scenarios, and the law may change by tonight. Also, if you see any errors, let me know.
The downloadable Word version has active links. The photos below do not.
One of the difficulties is that there are so many possible scenarios that could arise. I try to walk through some of them in the flowchart. The most straightforward scenarios, in the short term, involve workplaces that have been ordered by the state to close because of COVID. There is no ambiguity there. Employees of those companies have lost their income because of the virus, and new systems are in place to provide some short term job protection (emergency leave in the ESA) and income (the new federal Emergency Response Benefit (FERB). I say “short term” because there’s no guarantees that all of the jobs will still be there after the emergency is over and so some of these “layoffs” will become terminations, triggering legal rules regarding termination down the road. But let’s leave that grim situation alone for now.
The more complicated scenarios involve workers whose employers have continued to operate because they have been declared “essential”. A whole host of issues can arise in those workplaces. For example, many workers have been laid off because there is far less work to do. This creates a number of legal issues because temporary layoffs are a complex matter in employment law. Sometimes, a temporary layoff can be treated as a termination in employment law (as discussed in this post and again here) triggering requirements for the employer to provide termination pay and other requirements. So employees who work for “essential” businesses that are permitted to operate and who are laid-off have some things to think about, particularly if they are prepared to leave the job permanently. They should talk to a lawyer.
But let’s assume that a person is laid off by an essential business due to lack of work and she hopes to be recalled once things return to normal. Therefore, she does not want to claim she has been constructively dismissed. That employee is probably now entitled to access the FERB money provided she does not earn any income for 14 consecutive days in the month for which she is claiming the FERB money. If the employer calls her into work for a few hours, that could cause her to no longer qualify for the FERB that month. FERB requires a complete loss of employment income for 14 consecutive days because of COVID. But if she refuses to report to work, is she being insubordinate, or will she be treated as having quit, which disqualifies her from receiving FERB anyways? Hopefully employers are sensitive to the eligibility requirements for the FERB. I presume the logic behind the 14 consecutive day rule is to encourage social distancing, so workers just stay home.
Another question: Is an employee laid off due to a lack of work at an “essential business” covered by the new Ontario ESA emergency leave provision? That is not entirely clear. Take a restaurant employee. The employer is still open, but the employee is laid off because orders have fallen by 75%. If that employee is not sick, and not caring for a sick family member or for kids home from school, and has not been ordered to stay home due to concerns about risk from COVID, then it is certainly not clear that they are covered by the new emergency leave provisions. They have just been laid off for lack of work. This creates some odd potential scenarios.
For example, an employee how is laid off and not protected by the new emergency leave provision can be terminated just as if COVID never happened. But the employee’s coworker who happens to have children in a closed school may be covered by the emergency leave and therefore cannot be terminated. People with small children have greater protections than people without children. This seems to raise “family status” discrimination problems. We may see some of these types of scenarios percolate into the case law months from now.
Note that “independent contractors” are probably not covered by the ESA rules, which only applies to employment contracts. However, the new FERB does apply to contractors, so if you are a contractor work (platform, gig worker) and you have had no income for 14 consecutive days due to COVID, you should apply.
I will stop there. If you read the flowchart and notice something that is wrong, please let me know by leaving a comment. Also, changes are happening so fast that the details may be dated soon. The flowchart was based on my reading of the law as of March 26 a.m.