The coronavirus presents a stark choice: stay cooped up at home or venture outside and potentially contract and spread the virus.
But the recent protests in response to the killing of George Floyd in the U.S. turned this dichotomy on its head. Mass protests left social distancing in their wake with a gaping chasm between civil unrest and the eradication of a global pandemic.
The protests in cities from Montreal, New York and Los Angeles created remarkable footage, particularly after months of global self-isolation. Only two weekends ago our provincial leaders were in an uproar after videos emerged of crowds flocking to Toronto’s Trinity Bellwoods Park just before the mass protests started.
Somehow, just a few short days thereafter, social distancing was no longer expected at these rallies. As these protests will lead to spikes in coronavirus numbers in North America’s largest cities, employers must brace for what could be a significant second wave of the pandemic, potentially sooner than we expected.
The uncertainty left in the wake of the pandemic has compelled provincial governments across the country to amend legislation, in large part to extend layoff periods.
In Ontario, the government temporarily amended the Employment Standards Act this week, to abolish the layoff period during the COVID-19 pandemic entirely. In practice, this dramatically extends the length of legal layoffs.
Retroactive from March 1, the new provisions in the regulation make temporary changes to ESA. If employees’ hours were reduced in whole or partly due to COVID-19:
1) Employees will not considered to be laid off;
2) Instead, employees are deemed to be on infectious disease emergency leave; and
3) Employees are not considered to be constructively dismissed under the ESA, although they would still be under common law.
Employers need not return employees to work after only 12 weeks of layoffs when the ESA would have deemed them terminated if they were laid off without benefits, or after 35 weeks if the employees’ benefits were continued during their layoffs.
The amendment gives companies more flexibility, but it leaves employees with much less certainty on when, and if, they will ever return to their jobs.
Significantly, this legislation does not affect the common law of constructive and wrongful dismissal, so that employees in most provinces, including Ontario, who are laid off or have significant changes to their hours or wages can still claim constructive dismissal in the courts if they do not accept the changes.
As the length of time that an employer can lay off an employee without triggering a dismissal under the ESA has been so dramatically lengthened, companies will likely be laying off employees for much longer periods, while laid off employees are incentivized more than ever to sue for wrongful dismissal.
If you have been laid off and wonder how this new legislation might impact your return to work, or you are an employer wishing to lay off or reduce your employees’ wages or hours of work, you are best advised to obtain specialist counsel to plan your potential strategies.
And now on to questions.
Q: What should be included in a remote working arrangement?
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A: You should prescribe in an agreement the hours the employee is expected to work, the amount of time they are allowed before returning a call or email, the requirement to have their phone with them at all times during working hours, to what extent they are required to be at their computer and to what extent they are required to check in with their supervisor.
Most importantly, the right to revert on two weeks’ notice (or such other time as you prescribe) to the workplace in the event that you decide that the remote working arrangement is no longer of value to you. Without specifying that, returning them to the office would be a constructive dismissal if adequate advance notice was not provided which would be dramatically greater than two weeks.
Q: Can an employee refuse to work if they live with a family member with a compromised immune system?
A: Each case is determined individually. Some compromised immune systems have greater risks to the coronavirus than others. If, say, an employee works in a private office with a door, and other measures for the workplace that I have recommended in a previous column are prescribed, there is relatively little practical risk, whatever that employee or their family members’ circumstances are.
When it gets closer to the margin respecting a safe workplace, employees have a greater right to refuse work depending on the degree of risk to themselves or a live-in family member.
Q: What needs to happen for organizations who want people to work from home permanently going forward?
A: Since that, too, could be a constructive dismissal, it’s best to provide as much advance notice as possible. You should also focus on the type of employees that you hire in order to ensure you have employees that can work independently, prefer autonomy and are self-motivated since those characteristics will be of considerable importance. To the extent employees can be paid on piecework or commission basis, that’s obviously desirable since those employees work more successfully from their homes, or there is less risk to the employer.
Q:Do you recommend employers making masks a requirement in the office?
A: It depends to what extent you can easily create social distancing and have strict policies preventing employees from interacting closely. At the very least, all employees should be permitted to wear masks if they wish to do so, and they should be supplied by the employer.
Q: The employer says they want people to take vacation, but the manager doesn’t approve it and is being awkward. What is the employee’s legal right?
A: Every province has different regulations as to when vacation must be permitted to be taken. Short of that, the employer has absolute discretion as to when employees can take vacation. Obviously, acting unreasonably will result in employees leaving when the job market improves.
Got a question about employment law during COVID-19? Write to me at email@example.com.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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