The Question
What happens if my employees try to take advantage of the CERB? Some of them are collecting more on CERB than their usual wage and I’m worried they’ll say they are feeling “a little under the weather" or that they have a headache until the CERB period is over. What rights does an employer have if they feel the employee is faking? When businesses are allowed to reopen, I’ll be implementing all the protocols for protecting my employees. So I just want to know what my rights are.
The First Answer
Balraj K. Dosanjh, labour and employment lawyer, Cavalluzzo LLP, Toronto, Ont.
It is important to remember that the current pandemic situation is tough for all and I caution taking any action against an employee based on speculation. If your employees are currently receiving CERB payments, then that means they presumably satisfy one of the eligibility criteria and are receiving CERB payments because either their hours of work have been reduced, they stopped working, or they are unable to work due to the COVID-19 pandemic. Once you recall your employees back to work, then their absence from work after that point is not due to the impact of COVID-19. The CERB payments are not available for employees who are absent from work because they are feeling “a little under the weather” or because they have a “headache”.
However, if an employee is experiencing any symptoms of COVID-19, which can include a prolonged headache, for example, they may be asked to self-quarantine and, if that is the case, they would be eligible to receive either CERB payments or Employment Insurance sickness benefits.
Practically speaking, when you are ready to recall your employees to work, you may wish to remind them to confirm if they are still eligible to receive CERB payments once they return and note that the Canadian government is currently proposing significant penalties for anyone who makes a “false or misleading” benefit claim. Your employees may still be entitled to receive CERB payments once they return to work if they are working reduced hours due to the pandemic and will earn less than $1,000 a month as a result.
Finally, it is also important to appreciate that if an employee states that they are not feeling well, as an employer, you are legally required to provide a safe workplace for your employees. This means that you will need to assess whether this employee exhibiting symptoms should be returning to work in light of the potential health hazards that employee may present for others in the workplace.
The Second Answer
Katelynn Denny, employment lawyer, Forte Law Corporation, Surrey B.C.
Many employers are facing uncertainty as they begin to recall workers. A refusal to return to work may be considered a resignation or grounds for dismissal, however employers should tread carefully if the refusal is related to an illness or disability. Employers have a duty to accommodate a disability to the point of undue hardship, so ignoring an actual or perceived illness could land you in hot water.
If you recall an employee to work but they stay off work for health reasons, they will no longer be on a layoff, but instead on a medical leave. It may be reasonable in these circumstances to ask an employee to provide a doctor’s note. Employers must maintain a safe workplace for all employees, which means following WorkSafeBC (or applicable provincial) guidelines and having a plan for when employees feel ill or have symptoms linked to COVID-19. The BC Employment Standards Act has new job-protected leaves that allow an employee to remain off work if they are diagnosed with COVID-19, in quarantine or self-isolating. While a medical note is not required for these COVID-related leaves, an employer can ask for reasonably sufficient proof.
Employees should be cautious about refusing work as this may disqualify them from receiving government benefits like the CERB and EI. The CERB is available to those who are unable to work as a direct result of COVID-19. Workers should understand that voluntarily refusing work may lead to CERB benefits being denied.
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