1. Emergency Measures
Reopening Principles and Guidelines
On April 28, 2020, Prime Minister Trudeau released a joint statement with premiers across Canada on their shared public health approach to support reopening the economy. Governments will make decisions suited to their jurisdictions, geography, and disease activity. These decisions will be informed by experiences in other countries in Asia, Europe, and around the world – particularly those who had outbreaks earlier than Canada and who have achieved demonstrable successes. A shared key objective is to minimize the risk of another wave of COVID-19 that forces governments to re-impose severe restrictions, further damaging the social and economic fabric of communities.
The framework is guided by the following principles:
- Science and evidence-based decision-making
- Coordination and collaboration
- Accountability and transparency
- Flexibility and proportionality
The First Ministers agree that the following public health criteria will inform decisions to reopen the economy: Control the transmission of COVID-19; maintain the incidence of new cases at a level that the health care system can manage; sufficient public health capacity is in place to test; trace, and isolate new cases; expanded health care capacity for all patients, COVID-19 and non-COVID-19; supports in place for vulnerable groups/communities and key populations; workplace preventative measures; avoid risk of importation; and measures to engage and support communities in managing local disease activity.
Reopening Health and Safety Guidelines
While the Government of Canada has not outlined specific health and safety resources for the opening of the economy, the government website continues to provide helpful COVID-19 resources for businesses and workplaces.
For specific details on each province’s reopening open, see links below.
Optimal approach to keep track of the latest updates.
Government sites for staying up-to-date on COVID-19:
2. State Aid
- Canada Emergency Wage Subsidy (CEWS) – Coverage of 75% of employee’s wages – up to $847 per week for eligible employers. The CEWS will allow employers to re-hire employees and avoid layoffs during crisis. The program will be in place until August 29. Eligible employers must demonstrate an eligible reduction in revenue to receive the subsidy.
- Eligible employers include:
- individuals (including trusts)
- taxable corporations
- persons that are exempt from corporate tax (Part I of the Income Tax Act), other than public institutions:
- non-profit organizations
- agricultural organizations
- boards of trade
- chambers of commerce
- non-profit corporations for scientific research and experimental development
- labour organizations or societies
- benevolent or fraternal benefit societies or orders
- registered charities
- certain Indigenous government-owned corporations that carry on a business
- partnerships consisting of eligible employers and certain Indigenous governments
- registered Canadian amateur athletic associations
- registered journalism organizations
- private schools or private colleges, and
- partnerships consisting of eligible employers (including partnerships where at least 50% of the interests in the partnership are held by eligible employers)
- *Public institutions are not eligiblefor the subsidy. This includes municipalities and local governments, Crown corporations, public universities, colleges and schools, and hospitals.
- Eligible reductions in the revenue include:
- In order to receive the CEWS, eligible employers must show a reduction of revenues in a particular qualifying period. The required reduction in revenue has been set at 15% for March 2020 and at 30% for April and May of 2020.
- The required reduction in revenue for each qualifying period can be calculated in one of two ways:
- 2020 reference period against the same month in 2019; or
- Reference period against the average of January and February of 2020.
Currently, the three Qualifying Periods are as set out below. Additional information about the CEWS extension to August 29, 2020 is expected to be announced soon.
|Current Reference Period
||Prior Reference Period*
|March 15 to April 11
|April 12 to May 9
|May 10 to June 6
*may use an average of January and February 2020 revenue instead.
An eligible employee is someone who is Employed in Canada; Employed by the eligible entity in a qualifying period; and has not been without remuneration by the eligible entity in 14 or more consecutive days in the qualifying period.
- Temporary Wage Subsidy – The Temporary 10% Wage Subsidy is a three-month measure that allows eligible employers to reduce the amount of payroll deductions required to be remitted to the Canada Revenue Agency.
- Eligible employers include:
- individual (excluding trusts),
- non-profit organization,
- registered charity, or
- Canadian-controlled private corporation (including a cooperative corporation)**; have an existing business number and payroll program account with the CRA on March 18, 2020; and pay salary, wages, bonuses, or other remuneration to an eligible employee***.
- *Partnerships are only eligible for the subsidy if their members consist exclusively of individuals (excluding trusts), registered charities, other partnerships eligible for the subsidy, or eligible Canadian-controlled private corporations (CCPCs).
- **CCPCs are only eligible for the subsidy if they would have had a business limit for their last taxation year that ended before March 18, 2020, greater than nil (determined without reference to the passive income business limit reduction). For more information on whether your CCPC would have a business limit, see Small Business Deductionin the T2 Corporation Income Tax Guide.
- For more information on whether your corporation is a CCPC.
- ***An eligible employee is an individual who is employed in Canada.
- Extension of the Work-Sharing Program (WS) – The Government of Canada extended the maximum duration of the Work-Sharing program from 38 weeks to 76 weeks for employers affected by COVID-19. This measure will provide income support to employees eligible for Employment Insurance who agree to reduce their normal working hours because of developments beyond the control of their employers.
- Eligible employers for WS:
- be a year-round business in Canada for at least 1 year
- be a private business or a publicly held company, or
- have at least 2 employees in the WS unit
- Eligibility was also extended to:
- Government Business Enterprises (GBEs), also referred to as public corporations, and
- not-for-profit employers experiencing a shortage of work due to a reduction of business activity and/or a reduction in revenue levels due to COVID-19
- Eligible employees for WS:
- year-round, permanent, full-time or part-time employees needed to carry out the day-to-day functions of the business (“core staff”)
- be eligible to receive EI benefits, and
- agree to reduce their normal working hours by the same percentage and to share the available work
- Eligibility was also extended to:
- employees considered essential to the recovery and viability of the business can now be eligible to participate in Work-Sharing (such as technical employees engaged in product development, outside sales agents, marketing agents, etc.)
- CANADA EMERGENCY RESPONSE BENEFIT (CERB)
The CERB provides income support benefits for workers who suffer income loss due to COVID-19. This benefit combines the two previously announced emergency benefits (the Emergency Care Benefit and the Emergency Support Benefit) into one overarching income support benefit. The CERB is separate and distinct from the EI program. Therefore, an individual, if eligible, may be able to receive both the CERB and EI benefits in succession. Note an individual cannot receive both the CERB and EI benefits for the same period.
The CERB is a taxable benefit of $2,000 a month for up to 4 months (i.e. 16 weeks) available between March 15, 2020 and October 3, 2020. Although taxable, the tax will not be deducted when provided. Instead, individuals must report the eceipt of the CERB when filing income tax for the 2020 year.
The CERB is available to both employees and self-employed workers who have stopped working for reasons related to COVID-19, regardless of whether they are eligible for EI. Examples of COVID-19 related reasons for work stoppage include, but is not limited to:
- Laid off from a job;
- Quarantined or sick due to COVID-19;
- Away from work to take care of others who are in quarantine and/or sick due to COVID-19; and/or
- Away from work to take care of children or other dependents whose care facility is closed due to COVID-19.
An individual who has voluntarily quit his or her employment is not eligible for the CERB. On April 15, 2020 the Federal Government expanded the eligibility requirements for the CERB. Now, individuals who are eligible for EI regular or sickness benefits are eligible for the CERB as well as individuals who received EI regular benefits between December 29, 2019 and October 3, 2020 and have exhausted all of their available entitlement or exceeded the period in which they could collect benefits. This means an individual who was out of work prior to the COVID-19 pandemic and is unable to find a job as a result may be eligible to receive the CERB.
An individual is eligible for the CERB if he or she:
- Is 15 years of age or older;
- Resides in Canada and has a valid Social Insurance Number;
- During the four week benefit period:
- Has stopped or will stop working due to reasons related to COVID-19, or;
- Are eligible for EI regular or sickness benefits, or;
- Have exhausted their EI regular benefits between December 29, 2019 and October 3, 2020
- Has not earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days.
- Did not apply for, nor receive, CERB or EI benefits from Service Canada for the same eligibility period;
- Has earned a minimum of $5,000 income in the last 12 months or in 2019 from one or more of the following sources:
- employment income;
- self-employment income; and
- provincial or federal benefits related to maternity or paternity leave.
The $5,000 does not need to be earned in Canada but the individual must at least reside in Canada. The federal government has encouraged provinces to allow individuals to receive other support payments at the same time as the CERB.
An individual does not need to have been laid off to receive the CERB. Employees who still have their employment but have been asked not to come into work are entitled to the CERB as long as they have not been paid.
* Note that the details of the above criteria are subject to change as the federal government implements new measures to continue to assist workers affected by COVID-19.
3. Health and Safety Measures
Requirements mandated by law or any official guidance.
Governments across Canada have provided directives and measures to combat the spread and effects of COVID-19. These measures include the provision of new leaves of absence, financial support for employers and employees, and the mandatory closure of businesses that have been deemed to be “non-essential”. The Government of Canada has also placed restrictions on travel outside Canada and the government is advising Canadians to avoid all non-essential travel. For those individuals who return or enter Canada, the government is imposing a mandatory isolation or quarantine. The mandatory quarantine will require people entering Canada to isolate for 14 days, whether they are symptomatic or not.
The federal and provincial governments have also released guidelines for workplaces to prevent the spread of COVID-19 and ensure that employees are not exposed to conditions that could be harmful to their health and safety. Each workplace must consider specific controls to keep employees safe from contracting or spreading COVID-19 in the workplace. Guidelines issued by governments include the following measures: physical distancing measures in the workplace; reorganization of workspaces; increased worker and workplace hygiene; and discouraging people who are ill from entering the workplace.
The table below provides links to government guidelines on health and safety practices in the workplace to combat the spread of COVID-19
See section 3 on “state aid” for sweeping socio-economic policy amendments.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Physical Distancing and Workplace Modifications
Employers should promote physical distancing (keeping a distance of 2 metres from others). Physical distancing measures can be achieved by limiting the number of employees in the workplace and if possible enabling telework; avoiding multi-person meetings, limiting physical contact, and minimizing interpersonal interactions in the workplace; encouraging unidirectional travel in hallways or aisles; where possible adopting contactless business models; installing physical barriers between employees and clients (e.g. plexiglass windows or cubicle partitions).
Discouraging people who are ill from entering the workplace. Employers should prevent symptomatic employees from attending at the workplace by providing written policies and procedures that employees must follow when they are sick, or have come into contact with someone diagnosed with COVID-19. Where it is feasible, employers should consider asking clients if they are ill or have symptoms of COVID-19 before they enter the workplace.
Workplace Hygiene and Cleaning Measures
Employers should promote good hygiene by encouraging regular and thorough handwashing. Workplaces should have access to soap and water or alcohol-based sanitizer, hand sanitizer stations should be placed in prominent places around the workplace, and high-touch surfaces should be frequently cleaned and wiped down. Examples of high-touch surfaces include doors handles, faucet handles, keyboards, and shared equipment. Clients who visit the workplace should also be encouraged to maintain proper sanitation practices. Where possible, employers must try and increase ventilation in closed spaces by opening windows or moving work outside.
Personal Protective Equipment
The use of personal protective equipment (PPE) is based on risk assessments of specific work environments and the risk of exposure to infection. For workplaces with occupational health and safety committees, employers should involve the health and safety committee when making these assessments. Where hazards related to COVID-19 cannot be eliminated through physical distancing and other hygiene measures, employers may consider the use of PPE in the workplace. If PPE is recommended, employees should be trained on the proper use of PPE.
Contact Tracing Tools
Contact tracing tools are being suggested as an effective way to combat the spread of COVID-19. In a recent statement, the Canadian Privacy Commissioners emphasized that while privacy laws are not a barrier to implementing effective pandemic responses, compliance with privacy legislation remains mandatory.
More recently, Canada’s Privacy Commissioners released a Joint Commissioners’ statement on Contact Tracing. With respect to implementing Contact Tracing, the joint statement recommends adherence to the following principles:
- Consent and Trust. The use of apps must be voluntary. This will be indispensable to building public trust.
- Legal authority. The proposed measures must have a clear legal basis and consent must be meaningful. Personal information should not be accessible or compellable by service providers or other organizations.
- Necessity and proportionality. Measures must be necessary and proportionate and, therefore, be science-based, necessary for a specific purpose, tailored to that purpose and likely to be effective.
- Purpose limitation. Personal information must be used for its intended health purpose, and for no other purpose.
- De-identification. De-identified or aggregate data should be used whenever possible, unless it will not achieve the defined purpose. Consideration should be given to the risk of re-identification, which can be heightened in the case of location data.
- Time-limitation. Exceptional measures should be time-limited: any personal information collected during this period should be destroyed when the crisis ends, and the application decommissioned.
Accountability and safeguards. Employers must ensure they have safeguards in place to protect personal information during the COVID-19 pandemic. Appropriate legal and technical security safeguards, including strong contractual measures with developers, must be put in place to ensure that any non-authorized parties do not access data and not to be used for any purpose other than its intended
On balance, an employer in Canada may screen employees’ temperatures during the pandemic for the purpose of providing a safer workplace for all employees. However, the screening must be conducted in a manner that respects employees’ privacy and human rights. Below are a number of factors employers should consider before implementing temperature screening.
- What will you use to take the temperature? The device should be as accurate as possible. It should be able to screen employees quickly and be non-invasive. If possible, it should not require an employee to get close to other employees to take their temperatures. Generally, employers are using thermal forehead testing because it is fast and non-invasive.
- Where will temperatures be measured? If it is done at the door and there is only one door, it will likely cause a bottleneck, which may increase the risk of exposure to the virus. The screening area should be private, if possible.
- Some employers are providing employees with thermometers and asking them to take their temperature at home. If their temperature is above 37.8 C (or as recommended by Public Health), employees should be advised (i.e. through a policy) to call in sick or work from home. This could be combined with a health questionnaire to catch more potential cases of COVID-19, e.g. https://covid-19.ontario.ca/self-assessment/. Another advantage of asking employees to measure their temperature at home is that it intrudes less on employee privacy. Some employers have developed an app that allows employees to take a health questionnaire at home, including a temperature check. Assuming employees pass the screening, they get a green signal on their phone which they can show at the door as they enter the workplace.
- Who will measure employees’ temperatures? As stated above, it is better not to have one employee actually taking other employees’ temperatures. First, it puts that employee at risk because they will likely have to get close to other employees. Second, that employee will be given access to many other employees’ personal health information, which increases privacy concerns. Presumably that employee is not a nurse or a doctor who is qualified to take temperatures and protect personal health information. Still, if the employer wants to screen employees’ temperatures, someone will likely be required to stand at the door and oversee the process. The employer may be able to hire a third party to screen employees. Alternatively, the employee(s) performing the screening should be trained, including on COVID-19 symptoms, privacy and managing conflict, and be provided with gloves, masks and hand sanitizer.
- In addition to taking temperatures, the screener should also ask whether the employee has any flu-like symptoms or is otherwise feeling unwell. The screener should also ask whether the employee has had close contact with someone who has been diagnosed with, or is presumed to have, COVID-19. The screener could administer the Public Health self-assessment (above). An employee who has a temperature of above 37.8 C (or as recommended by Public Health) or who answers yes to any of the screening questions should be advised to return home. The employee should be provided with a mask and advised not to take public transit. The employee should be advised to self-isolate and contact their doctor or public health to see what further testing or treatment is recommended.
- Employees’ temperatures and answers to health questions should not be recorded and retained. To the extent that records are necessary, they may include the names of employees who attended work and those who were sent home. Keeping records of temperature checks or other personal health information greatly increases privacy concerns.
- The temperature or other personal health information should not be used for any purpose other than determining whether or not the employee can enter the workplace.
- The results of the temperature screening and other personal health information should be kept confidential. Other employees should not be advised of this information, except as needed to do their job.
- If an employee refuses to be tested, what will the employer do? Normally, in order to enforce a temperature screening policy, that employee should not be allowed to enter the workplace. Will they be disciplined or simply instructed to work from home?
- The employer should develop a policy that covers all of the above and provide employees with the policy before they begin returning to the office.
Employers should consider what training will be needed for employees who are returning to the workplace. Training should include instructing employees on new COVID-19 policies, new workplace policies, workplace re-opening guidelines, hygiene and sanitation policies, and responding to COVID-19 related workplace issues. Employers must also consider effective methods of communicating new policies and training programs to their employees. The policies should remain accessible to all employees and if possible should be posted on an accessible board or saved in an accessible online platform.
Teleworking – Policies and procedures for telework once business reopens
In order to prepare for telework once business reopens, employers should draft telecommuting policies. The policy should address clear expectations for employee conduct and should set out steps to ensure the protection of company property and confidential information. Where telework is optional, the policy should address eligibility for telework and the procedure for requesting approval to work from home. The policy should also address telework as an accommodation for employees who request work from home arrangements due to a protected characteristic, such as a disability or family care obligations. In addition, employers should remind employees that they are expected to comply with all workplace policies, including health and safety policies and security policies.
In order to facilitate a clear understanding for all employees, employers must:
- Define the scope of employee duties and set out expected performance goals.
- Mandate a timeframe where all employees are expected to be working and available.
- Agree on the employee’s expected or permitted work location(s). This will also allow the employer to ensure the workspace is in compliance with Occupational Health and Safety legislation.
Comply with Minimum Standards Rules
- Employers should keep track of the hours the employees are working in order to comply with minimum standards and rules with respect to overtime work.
- Employers must respect vacation and statutory holidays and allow employees to exercise their rights with respect to same.
Comply with Human Rights Obligations
- If remote work is optional or a privilege granted to employees, employers must ensure their decisions are fair and based on objective and non-discriminatory criteria.
- Work from home arrangements can also be implemented as a form of accommodation, where necessary or appropriate.
Occupational Health and Safety Measures
- Remote working environments are an extension of the workplace and employers should consider reasonable measures to promote workplace health and safety.
- Employers must conduct hazard checks to ensure the employee’s workspace is free from hazards.
- For privacy reasons, conventional inspections by the Joint Health and Safety Committee will likely be inappropriate. Employers must consider alternative means to conduct inspections which may include providing an employee with a health and safety checklist or guidelines. The employee would then submit an inspection report and the parties could work together to resolve identified hazards.
Technology and Information Handling Practices
- Employers must review their technology policies and ensure they provide appropriate measures to protect business and confidential information. Employees should receive training to ensure the protection of confidential information.
Employee Privacy Protections
- Employers must adopt procedures that allow for adequate employee monitoring of productivity and hours while respecting employee privacy. Privacy laws place restrictions on the collection, use, and disclosure of personal information, and employers must be mindful of these boundaries. Employees should be informed of the monitoring and the purpose of the supervision.
Managing Employee Conduct and Performance
- Employee monitoring will allow employers to manage work performance and engagement. Supervisors should consider tracking employee hours and providing instruction on productivity goals.
- In order to facilitate productivity, employers should consider:
- providing training on remote work habits;
- conducting meetings to update employees on productivity; and
- offering assistance to ensure employees are supported to effectively conduct remote work.
5. Managing COVID-19-Related Employee Issues
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Employers should work with their employees to create flexible work schedules, facilitate work from home arrangements, or provide their employees with a temporary leave of absence. Several Canadian jurisdictions have expanded statutory leaves for employees who are absent from the workplace because they are self-isolating, because they have family or child-care obligations, or as a result of other issues related to COVID-19. The nature of the request will dictate the leave of absence that will be appropriate. As a result of the COVID-19 pandemic, employees may be entitled to the following leaves:
- Short-term sick leave
- Long-term illness or injury leave
- Compassionate care leave
- Emergency leave
The details and requirements for these leaves vary by jurisdiction. Usually these leaves are unpaid. Where child-care obligations are pressing or lengthy, employees may be entitled to human rights accommodations on the basis of the protected ground of family-status. In addition, employers will often have policies that provide for more generous leave entitlements. Employers should asses their workplace policies that provide for leaves and, where they qualify, allow employees to access these leaves. Where the leaves are unpaid, the employee may be entitled to income replacement under government benefit programs.
Employees who fear infection and refuse to work.
Courts and adjudicators will most likely weigh all of the relevant factors in the circumstances to determine whether the workplace created a greater risk of the worker contracting COVID-19 than the community at large. The Workplace Safety and Insurance Board sets out a number of factors that it will use to determine whether a worker’s employment was a significant contributing factor to his/her COVID-19 condition. It is likely that the Ministry of Labour will enlist a similar approach when evaluating whether a worker has invoked a valid work refusal under the Occupational Health and Safety Act.
- The nature of the worker’s employment created an elevated risk of contracting COVID-19 • Has a contact source to COVID-19 within the workplace been identified? • Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infectious substances? • Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance?
- The worker’s COVID-19 condition has been confirmed • Are the incubation period, the time from the date of exposure and the onset of illness, clinically compatible with COVID-19 that has been established to exist in the workplace? • Has a medical diagnosis been confirmed? If not, are the worker’s symptoms clinically compatible with the symptoms produced by COVID-19? Is this supported by an assessment from a registered health professional?
A decision-maker must gather all of the relevant information in order to assess and weigh each piece of evidence to determine whether the worker’s COVID-19 is work-related. The key issue to be determined, as part of the assessment of work-relatedness, is whether the worker’s employment duties or requirements were a significant contributing factor in the worker contracting COVID-19.
Disclosure of employees who are infected.
Action Plan: Steps to Take if Employee is a Confirmed Case of COVID-19
Step One: Tell the employee who tested positive not to attend the workplace until cleared to do so by a medical professional. Occupational Health and Safety legislation”) sets out the duties of employers with respect to health and safety of employees in the workplace. Employers must take “every reasonable precaution in the circumstances for the protection of a worker. In the case of an employee that has tested positive for COVID-19, it is a reasonable precaution to not allow an employee to return to work until they have received clearance that the virus is no longer communicable from a medical professional. According to the Public Health Agency of Canada (“PHAC”), two consecutive negative laboratory test results, at least 24 hours apart, can be used to determine the end of the communicable period of COVID-19.
Step Two: Ask the employee to identify co-workers that they had close contact with and ask those co-workers to stay out of the workplace for 14 days. According to PHAC, any person who is within 2 metres of a COVID-19 case where the individual is experiencing respiratory symptoms (e.g. sneezing, coughing) is at risk of transmission. PHAC also states that a longer exposure time increases the risk of exposure to the virus. PHAC is currently advising that individuals without symptoms who have been in close contact with a COVID-19 case need to self-isolate for 14 days. At this time, however, PHAC has not released guidance on how a “close contact” is defined.
Step Three: Notify the joint health and safety committee. Under Occupational Health and Safety legislation, employers have a duty to provide the joint health and safety committee with information relating to hazards in the workplace. This duty must be balanced with the infected employee’s right to privacy. Generally, employers should not identify the individual who has been confirmed to be a positive case of COVID-19. The objective is to provide the joint health and safety committee with sufficient information about the risk of transmission in the workplace. The fact that certain employees have potentially been exposed to COVID-19 can be provided. The dates of the exposure and the extent of the circumstances of their exposure can also be disclosed.
Step Four: Notify other employees that have a credible transmission risk of COVID-19. According to PHAC, a person who has contact with an inanimate object, such as contaminated surfaces and objects, which can serve as the vehicle for transmission of COVID-19 viruses, is at risk of infection. Employees that have not been within 2 metres of a COVID-19 case, but have worked in the same workspace such that they have potentially had contact with a contaminated surface or object, should be informed of their potential exposure.
As set out above, the name or identifying information about the employee that is a confirmed case of COVID-19 should not be disclosed. However, sufficient information about the potential exposure to other employees should be disclosed in order for potentially exposed employees to seek medical advice if necessary.
Step Five: If there is reasonable evidence to suspect that the employee became infected through exposure in the workplace, report the illness to the ministry of labour and worker’s compensation board. Workers who contract COVID-19 in the course of their employment may be eligible for loss of earnings benefits under worker’s compensation legislation. Under most worker’s compensation legislation, employers have an obligation to notify the appropriate authority within a specific time period after learning of a workplace accident or injury. Employers should ensure that they comply with notice and reporting obligations applicable in their jurisdiction(s).
Whether a worker is entitled to loss of earnings benefits under a worker’s compensation regime will generally depend on whether there is a connection between the workplace and the worker’s contraction of the virus. For example, in Ontario, the Workplace Safety and Insurance Board (“WSIB”) has released a COVID-19 update, which states that entitlement to benefits because of COVID-19 will be determined by considering whether the nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed. In determining whether the nature of the worker’s employment created an elevated risk of contracting COVID-19, the adjudicator will consider:
- Has a contact source to COVID-19 been identified?
- Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infected substances?
- Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route o transmission for the infectious substance?
Monitoring travel will still be important for the purposes of limiting the spread of COVID-19 in the workplace. While employers may restrict business-related travel, restricting employees’ personal travel is more problematic. During the COVID-19 pandemic, the Government of Canada is restricting travel to other countries to essential travel only. Employers may encourage employees to monitor the Government of Canada website and avoid non-essential travel. In addition, employers may require employees to report if they have been travelling, or will be travelling to high-risk areas, and must implement and advise employees of the company workplace travel policy and the requirement to self-quarantine when returning from travel outside Canada.
Providing Employees with Accommodations
Human Rights legislation in all Canadian jurisdictions prohibits employers from discriminating against employees on specific grounds. As a result of the COVID-19 pandemic, employees may face a number of challenges including being at a greater risk of contracting COVID-19 as a result of having a weaker immune system, or increased child-care obligations and responsibility for sick relatives. Actions against persons who have contracted COVID-19, or refusals to provide accommodations for employees at a greater risk of contracting COVID-19 and employees with family and child-care obligations, may constitute discrimination.
For employees facing challenges as a result of the COVID-19 pandemic, employers must consider accommodations that may include work from home arrangements if possible, modifying the employee’s workstation to reduce the risk of infection, or allowing the employee to utilize a statutory job-protected leaves or company leaves.
6. Cost-Reduction Strategies
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
In Canada, the terminology furlough is not commonly used. Instead layoffs are, by nature, temporary. For a full discussion on temporary layoffs, see section “Redundancy – layoffs” below.
- Salary reductions.
When an employer unilaterally reduces an employee’s wages it risks a claim of constructive dismissal from the employee.
In determining if the reduction constitutes constructive dismissal, the courts will consider:
- A wage reduction that is not significant in relation to the employee’s overall income and is accompanied by other increases will not likely result in a constructive dismissal.
- Whether the employment contract allows the employer to make unilateral changes to the employee’s wages.
- Whether the reduction is temporary or permanent. There must be a valid, good faith, business justification for the change and the employee must also be told the change is temporary. The shorter the change, the less likely that the change will be considered constructive dismissal.
When COVID-19 effects begin to impact supply chains, employers may be considering temporary layoffs to save costs, or even permanently terminating members of its workforce.
- In unionized workplaces, collective agreements typically anticipate temporary layoffs and terminations, permitting employers to impose them within a negotiated framework that preserves seniority and job security.
- In non-unionized workplaces, layoffs are considered a constructive dismissal unless there is an express or implied term in the employment contract permitting their use. It remains to be seen whether a layoff in the context of mandatory COVID-19 workplace closures would be treated as a constructive dismissal by courts. It is possible that courts may find that an implied layoff term exists in the employment contract for such circumstances.
Where layoffs are permitted, they must be temporary. Minimum standards legislation dictates minimum requirements regarding notice, compensation during the layoff and the maximum duration of the layoff.
When the employer terminates:
- A unionized employee, the collective agreement will dictate seniority rights, bumping rights and termination entitlements.
- A non-unionized employee, the terminated employee will be entitled to statutory notice of termination (or pay in lieu), statutory severance pay (in some jurisdictions) and common law or contractual notice. Some jurisdictions have statutory termination notice exceptions where the termination is due to a business closure or unforeseen event. Statutory unjust dismissal protections may not apply where the termination or layoff is due to lack of work.
Mass/Group Terminations or Layoffs.
In both the unionized and non-unionized setting, if the layoff or terminations affects a group of employees, statutory group or mass termination obligations may arise. These obligations can include: advance notice of the group termination to the government; a few jurisdictions require the employer to implement a joint planning committee with its workers to address issues arising out of the group termination; and the employer will be required to provide its affected employees with group termination notice and/or individual notice in advance of termination.
Reprisals. Some jurisdictions are implementing job protection legislation during the COVID-19 pandemic. For example, Ontario has implemented a Declared Emergencies and Infectious Disease Emergencies Leave which prohibits reprisals against employees who take COVID-19 related leaves. Laying off or terminating an employee who takes such a leave may constitute a reprisal exposing the employer to potential liability.
Discrimination. Human rights claims can arise if the employer terminates the employment of an employee who has (or is assumed to have) contracted COVID-19.
- Facility closure.
All Canadian jurisdictions have declared a state of emergency or a public health emergency forcing the closure of certain businesses during the COVID-19 pandemic. Each jurisdiction has a unique list of mandatory business closures. To determine whether a business is permitted to open, employers must monitor the government websites for the provinces and territories in which their businesses operate. Where a business decides to remain closed, employers must comply with their duties with respect to layoffs and the accompanying obligations if those layoffs exceed the permitted statutory layoff period and are deemed to be terminations.
7. Best Practices
Keep up with new developments
As governments continue to make changes to existing legislation and health and safety guidelines, it is essential for employers to stay up-to-date with changes that may affect their workplaces and businesses. Most Canadian jurisdictions have instituted re-opening plans, and with each jurisdiction having different re-opening criteria and health and safety obligations, it is imperative for employers to keep apprised of which re-opening measures are applicable, and when they come into force. Employers should continually monitor government orders and directives as well as public health websites to ensure they are in compliance with re-opening guidelines and health and safety measures.
Have a Plan
In order to provide for a successful re-opening of the workplace, employers must develop re-opening plans that suit the characteristics of their workplaces. Re-opening plans should include updated health and safety measures; updated workplace policies and training; COVID-19 hazard identification in the workplace; provision for human rights accommodations; updated leave policies for employees experiencing COVID-19 related challenges; updated privacy policies and guidelines for dealing with information related to COVID-19; and methods for effective communication channels to keep employees, clients, and other stakeholders updated and informed.
Maintain Health and Hygiene Practices
In order to ensure a safe operating environment, employers must be diligent about maintaining health and hygiene practices. Employees should be trained on updated health and safety guidelines and posters can be placed around the workplace that educate and encourage good personal hygiene.
Maintain Compliance with Statutory Employment obligations
Employers should ensure that they continue to comply with the different legislative obligations and minimum standards that apply to their workplaces. While the pandemic may have altered the way businesses and workplaces operate, employers must continue to follow applicable employment standards and meet relevant legal obligations.