Employment lawyer Daniel Lublin answers some frequently asked questions employees have about how coronavirus affects their jobs. Have a question that you’d like answered? Send them to NineToFive@globeandmail.com. These answers are not meant to cover every case and situation. To obtain advice that relates to your personal circumstances, the best route is to contact an employment lawyer.
- I don’t feel safe going to work. Can I stay home?
- Social distancing is impossible at my job. If I stay at home, am I eligible for EI?
- Can my employer require me to accept a reduced wage or less hours?
- Am I entitled to severance?
- My child’s school is closed. Am I entitled to time off?
- Am I entitled to my salary while I’m quarantined?
- If my workplace tells me not to come in, will I be still be paid?
- Can my employer temporarily lay me off?
- Can my employer force me to use my vacation time?
- What types of questions can my employer ask me related to COVID-19?
- Can I apply for EI if I self-quarantine without any symptoms?
- The start date of my new job has been pushed back indefinitely. What do I do?
- I signed a new job contract but was laid off before working any hours. What do I do?
- What happens if I haven't worked enough hours to qualify for EI?
- I've been asked to not return to work until I am tested and cleared of COVID-19. Should I be paid for that time?
- What is "frustration of contract" and can it be used to end my employment without termination or severance pay?
- I am a temporary foreign worker. Am I eligible for benefits?
- My employer wants me to sign a waiver in the event I contract COVID-19 through continuing to work. Is this legal?
- I signed a severance package but they're saying they can't pay me the whole amount
- Are self-employed people and individual contractors eligible for benefits?
- If I am laid off and then recalled, am I treated as a new employee?
- Does my employer have to provide me with my job back after a temporary layoff ends?
- I’ve received an ultimatum: continue working with a large reduction to my salary or be temporarily laid off and go on EI.
- My maternity leave is ending and my employer has announced layoffs. Will I be able to extend my EI claim?
- I am being asked to work even though I am non-essential. Can I report this?
Table of contents
I don’t feel safe going into the workplace because of COVID-19. Can I stay home?
This depends on whether your presence at the workplace presents a reasonable likelihood that you will become infected with COVID-19.
You have the right to refuse to perform your job if it is likely to endanger you. Whether you face a clear and present danger depends on the circumstances and the type of work you perform. A work refusal is only justified when the situation remains unsafe. If you work in an office and an employee near to you is complaining of symptoms similar to COVID-19, you may be justified in leaving that airspace and, if there is no other alternative, staying home until that threat of a potential infection is removed. You do not have an unlimited right to simply stop working or return home whenever you feel like there could be a risk. It has to be a real risk.
Although you cannot be fired for exercising a COVID-19 work refusal due to a good-faith belief that you may become infected, if you stop working without that good faith and reasonable belief, your wages and job may be placed in jeopardy.
Whether your COVID-19 refusal to work is justifiable will depend on whether it is founded upon recommendations of public-health authorities or founded upon unreasonable fears. Stay informed by following municipal, provincial and federal health recommendations posted on official government websites.
The provincial government also recently announced job-protection legislation to protect the job security of employees away from work because of COVID-19. The precise scope of the legislation is not yet known.
Social distancing is impossible at my job and I want to stop going into work. Am I eligible to receive employment insurance benefits?
You likely would not qualify for EI for a gap in employment where you choose to leave the workplace or where you voluntarily self-isolate and you are not sick yourself or required to self-isolate by order of your employer, the government, a doctor, or other health authorities. However, based on the currently available information, you may be eligible for the Canada Emergency Response Benefit.
Keep in mind that you have a right to refuse unsafe work. However, depending on which province you live in, you may not be able to withdraw from working due to your concerns about social distancing and your intent to self-isolate, unless your employer is not taking the correct steps to ensure your safety. Leaving work in these circumstances can result in a loss of pay or in some circumstances can amount to a job abandonment.
Can my employer require me to accept a reduced wage or fewer hours due to COVID-19?
The answer is no, as you cannot be forced to accept any significant and harmful changes to your employment, including your rate of pay, hours of work or the elimination of other perquisites you are normally entitled to (such as benefits, commissions, bonuses, allowances). If the changes are significant and harmful, it represents a constructive termination, which allows you to claim damages for the loss in pay, or severance while you look for another job. However, this may require you to actually leave the workplace and look for another job in order to pursue your claim, which seems far more difficult and risky to do now as a result of COVID-19. For this reason, many employees are choosing to accept temporary pay reductions if it means keeping their jobs as an alternative to these types of legal claims.
Furthermore, it remains to be seen how Canadian courts will handle situations where employers opted to reduce hours and pay instead of terminating employees. I suspect that employers will be given additional leeway in these challenging times in order to maintain business operations rather than shutting down.
If my employer shuts down because of COVID-19, am I entitled to severance?
Yes. As long as your employer does not declare bankruptcy, then the closing represents a termination of your employment and you would be entitled to claim a severance package if one was not presented to you.
Severance must be calculated with reference to employment-standards legislation, your employment contract, your age, your tenure, your position and precedents. There is a debate right now about whether employers or employees will be afforded more protection by the courts in disputes about severance pay. During the 2008 financial crisis, there were several judges who felt that employees should receive longer than normal severance packages owing to the difficulty they faced in finding other comparable work.
My child’s school is closed. Does my employer have to give me time off so I can care for my child?
Human-rights laws require that employers accommodate your child-care needs. Employers must determine whether the nature of your role enables you to perform work from home and, if so, to provide you with remote work. Employers and employees must also work together to determine if there are other arrangements for child care that can be implemented or any other adjustments to your role, such as different hours of work so your spouse or other family member can care for your children while you work, which enables you to perform your regular duties.
If there are no other reasonable options available, then you are entitled to unpaid time off to stay home to watch your children. However, you would be eligible for employment insurance. You also cannot be fired if you must stay home to care for your children owing to a school closing.
If I have COVID-19, am I entitled to my salary while I’m quarantined?
If you have COVID-19 or are otherwise required to self-isolate, then you are not entitled to your regular salary, although you should make a claim under your disability insurance policy or sick-leave policy through your employer, if it provides those benefits. If not, you should be able to use paid vacation time. You would also be entitled to employment insurance immediately.
You cannot be terminated because you are sick with COVID-19 and you cannot be terminated because you self-isolate owing to the possibility that you have COVID-19.
If my workplace tells me not to come into work because it is closing down for several weeks, will I be paid for the time off?
Your employer has no obligation to pay you when you are not working. But it is an implicit part of any employment contract that the employer must provide work to employees. Where your wages and work are suspended, even for a few weeks, it is technically a constructive dismissal or implied termination. Employees could claim termination pay or severance pay under employment-standards legislation or their employment contract. To avoid this liability, some employers are paying employees during this time off. Others aren’t. Still, many employees may be reluctant to assert constructive dismissal claims right now as the uncertain job market may mean more risk and uncertainty for them. The unprecedented circumstances created by the COVID-19 outbreak may also implicitly introduce an employer’s right to temporarily lay off employees.
This answer will become more complicated and may change if businesses are required to shut down due to a government order or told that it is no longer safe to have any employees continue to work.
Can my employer temporarily lay me off because of COVID-19?
Many employers are considering or implementing temporary layoffs as a response to a slowdown in business owing to COVID-19. Temporary layoffs of varying lengths are allowed under provincial legislation without it amounting to a termination, so long as you are recalled to work within a certain time period.
During a temporary layoff, you would be eligible to receive employment insurance, and, most of the time, your employee health benefits are continued.
Even though provincial legislation describes temporary layoff restrictions, the legislation does not create a complete right for an employer to implement a temporary layoff. Unless you have an employment agreement that explicitly permits a temporary layoff, then an employee can treat a temporary layoff as tantamount to an immediate termination of employment, giving rise to a claim for severance. But this approach could be risky in the context of the COVID-19 outbreak and given the current economic situation. The COVID-19 outbreak is unprecedented, and the law may imply an employer has the right to implement a temporary layoff as a health and safety measure or because of work shortages that arise in these unique circumstances.
Can my employer force me to use my vacation time during a business closing?
This depends on the province you work in, but generally your employer can direct when you take your vacation time.
What types of questions can my employer ask me related to COVID-19?
Employers have to ensure that the workplace is safe for employees. They are entitled to ask a number of questions designed to determine if you pose a health and safety risk, such as:
- Are you exhibiting symptoms of COVID-19?
- Were you in close personal contact with anyone who has exhibited symptoms of COVID-19?
- Were you in the same physical vicinity with anyone who is confirmed to have COVID-19 within the past several weeks?
- Have you travelled to an affected area where there was a COVID-19 outbreak?
- Were you in close personal contact with anyone who recently travelled to an area with a COVID-19 outbreak?
Arguably, this list could also include the question “have you travelled outside of Canada at all?”
You cannot be fired if you answer yes to any of these questions.
However, you can be told to immediately leave the workplace and not to return until such time as there is no risk that you will infect the other workers.
Note that you cannot be targeted by your employer and asked certain questions due to your race, place of origin or ethnicity. Human-rights legislation recognizes the importance of balancing people’s rights to non-discrimination with public health and safety, including the need to address evidence-based risks associated with COVID-19. Questions that are founded upon reasonable health and safety concerns consistent with the recommendations of public-health authorities will be permissible. Questions that are founded upon misguided fears and stereotypes may be inappropriate and amount to discrimination.
Can I apply for Employment Insurance Sickness Benefits if I self-quarantine without any symptoms?
Employment Insurance sickness benefits are available to employees who are unable to work because of “illness, injury, or quarantine.” Even if you are not yourself sick or injured, you may qualify for sickness benefits if you are quarantined as a result of the COVID-19 outbreak.
A medical certificate is usually required for sickness benefits, but the federal government has waived this requirement for COVID-19 related claims.
For the purposes of a sickness benefits claim, a “quarantine” may be proven to Service Canada by providing a declaration that the quarantine was “imposed on the claimant by a public-health official for the health and safety of the public at large” or “recommended by such an official for the health and safety of the public at large and the claimant was asked by their employer, a medical doctor, a nurse or another similar person in authority to place themselves under quarantine.”
Someone who has recently returned from travel abroad would qualify under this definition of “quarantine” in light of the current self-isolation recommendations from public-health authorities. Similarly, someone who cannot work because of restrictions against gatherings of 50 or more people could fit the definition of “quarantine.”
But there remains some doubt as to whether an entirely asymptomatic person, who has not recently travelled, and who hasn’t been sent home by their employer can qualify for sickness benefits. If the voluntary self-isolation is purely fear-based without any connection to prevailing public-health recommendations, such an employee may not qualify for EI sickness benefits while away from work.
I was scheduled to begin a new job but the start date has now been pushed back indefinitely. What can I do?
Your start date is a key term of your employment. An employer who changes your start date, without your consent, is violating that term of your employment.
It can be very difficult to compel the company to maintain your original start date. Therefore, you could agree to the change or condone it by not protesting. You could also register a protest and assuming you eventually start the job, you can still pursue a claim at a later date for any damages you incurred (i.e. lost wages and benefits). Finally, you could treat the delay as an immediate termination and take legal action to recover your damages, especially if you left your last job to take this one. Realistically, you should consider whether you want to burn bridges with your new employer right now through legal action, especially if it is a relatively short postponement.
If you were terminated by your last employer, and you otherwise qualify for employment insurance, then you would make such a claim for regular benefits until the new job starts. However, if you resigned from your last position, you are unlikely to qualify for employment insurance benefits to cover the gap between the job you left and the job you planned to start.
I signed a new job contract but was laid off before I had worked any hours or before I started. What are my options?
You should have received a Record of Employment indicating that you were laid off due to a shortage of work. If you worked enough qualified hours prior to the layoff, also taking into account any prior employment you held during the last year, then you should still be able to qualify for regular EI benefits.
If you don’t qualify for EI benefits, you may qualify for the new Canada Emergency Response Benefit which the federal government recently announced it is making available to employees affected by the COVID-19 outbreak but who don’t otherwise qualify for EI. The program is essentially a catch-all for workers who are affected by COVID-19 and unable to work or who are no longer receiving an income.
I have not worked enough hours to qualify for EI. Has there been any change in eligibility to cover me?
The Federal Government has not yet announced any change to the basic eligibility rules for regular employment insurance. Employment insurance is available in a number of different circumstances, including if you are laid off, terminated or sick. But workers generally must have first worked at least 600 insurable hours during the 52 weeks prior to the claim for insurance. You should review the Federal Government’s employment insurance website.
Even if you do not qualify for regular benefits under the regular rules, there is another option for you to obtain benefits. The Federal Government just announced the new Canada Emergency Response Benefit. It is available to workers, including self-employed workers, affected by the COVID-19 outbreak who do not otherwise qualify for employment insurance benefits.
My place of employment asked me to get tested for COVID-19 and not return to work until I was cleared. Should I legally be paid for the time I spend waiting for my test results?
An employer has an obligation to maintain a safe workplace. In the context of an infectious disease, an employer is justified in sending you home if you recently (i.e. within the last 14 days) traveled outside of Canada and especially if you were showing symptoms consistent with Coronavirus. Your employer would is also justified in insisting upon a medical note that confirms it is safe for you to return to the workplace before you can do so. In general, an employer does not have to pay an employee who is not actually performing work. However, this is complicated when there is no clear evidence that you are sick with the virus.
For those that can work remotely, this should be explored and remote work would be paid time.
Furthermore, if you have vacation days or paid sick time you may be able to utilize those benefits for payment. Finally, if you have disability coverage, then you may be covered under the insurance plan.
If none of these options are available, you should apply for employment insurance sickness benefits. The federal government recently waived the one-week waiting period for employment insurance sickness benefits.
What is “frustration of contract” and can that be used to end my employment without severance or termination pay?
This will be an issue that eventually plays out in courtrooms across the country.
The legal doctrine of frustration of contract arises when there is an unanticipated situation and, through no fault of either party, your employment relationship becomes impossible to continue. In this case, it is not considered a termination or a resignation.
When an employment relationship is frustrated, you and your employer are essentially released of the remaining obligations owed to each other. If that occurs, employers are excused from having to provide the typical termination or severance pay they would otherwise owe to employees for terminating their employment.
It is possible that the COVID-19 pandemic could be treated by courts as the type of unanticipated event that would amount to a frustrated employment relationship but those courts will have to strike a delicate balance between the competing interests of employers and employees. This will ultimately depend on factors such as:
a. the length of the pandemic;
b. whether the employer ceased business entirely or kept operating at a reduced scale;
c. whether other employees in your same position at the company did not lose their jobs;
d. the impact of a finding of frustration of employment on both the employer and the employee; and
e. whether your employment could have continued with additional considerations or whether it was truly and completely impossible to continue at all.
Frustration of contract is a last resort and is typically reserved for the most extraordinary circumstances. COVID-19 may meet that definition but it is much too early to tell and cannot be generalized for everyone. Specific circumstances for each situation must be considered.
I am a temporary foreign worker on a study or work visa. Am I eligible for any benefits?
Temporary foreign workers are entitled to claim EI Benefits. EI Benefits are payable to eligible workers for all days in a benefits period where they are “capable of and available for work.” If a work permit expires, EI payments may stop because the worker is no longer capable or available for work.
The new Emergency Care Benefit and Emergency Support Benefit have not yet been described in detail by the federal government. It remains to be seen precisely who will qualify.
My employer wants me to sign a waiver/zero liability letter in the event I contract COVID-19 through continuing to work. Is this legal and what rights do I have if I refuse to sign this letter?
You cannot be forced to sign a waiver of legal rights, especially if you are being asked to work in any type of situation that is unsafe or potentially unsafe. You also have the right to refuse to work where it is likely to endanger your health and safety so you cannot be forced to continue to work in an unsafe environment even if you don’t agree to sign the waiver.
There is talk about some employers offering employees additional compensation or benefits to stay at work or to work additional hours or overtime. Subject to the government mandated work stoppages that are occurring in Canada right now, it is possible for employers and employees to agree on additional compensation or benefits for employees who are prepared to continue to work despite the health risks that may exist. But employees cannot be forced or threatened to make these types of deals and they should definitely not sign anything without having it first reviewed by a lawyer.
I signed a severance package when I was let go. Now the company is saying that they will not be able to pay the rest of my severance moving forward. Can they do this?
Your severance agreement is a contract. If your ex-employer does not comply with it, especially by refusing to pay the money you are owed, it has violated that contract. Once that contract is violated, you have two options. You can take legal action to compel your ex-employer to comply with the contract and to pay your legal costs to enforce that deal. Or you can put aside the severance contract and take legal action to recover whatever damages you originally suffered.
Unfortunately, I am hearing stories about many companies who are delaying debts or stopping payments owed to ex-employees on the basis that they need to preserve the money. This is really no excuse. Of course, if a company goes out of business then everyone loses. However, up to that point, individuals should insist that companies adhere to the agreements they previously made. The sooner you assert your rights in this scenario, the better.
Do self-employed individuals or contractors qualify for any financial protection if they are laid off, become sick or self-isolation?
Absolutely. The new Canada Emergency Response Benefit is designed to provide up to $2000 per month for up to 4 months of income replacement for workers, including self-employed workers and contractors, who face unemployment due to COVID-19, including those who are sick, quarantined, or in directed self-isolation.
According to the Federal Government’s press release “all Canadians who have ceased working due to COVID-19, whether they are EI-eligible or not, would be able to receive the CERB to ensure they have timely access to the income support they need”.
If I am laid off and then recalled, am I treated as a new employee or does my tenure continue as if I never left?
If you are recalled to work following a layoff, your employment tenure must be treated as continuous.
Does my employer have to provide me with my job back after a temporary layoff ends?
Your employer does not need to recall you but you have rights if you are not recalled.
As stated in an earlier posting, a temporary layoff can be illegal from the outset. However, if you do not pursue a legal claim due to the layoff and your employer does not recall you to work within the maximum time frame permitted under the provincial or federal employment statute that applies to you, then your employment is clearly terminated as of that point and you are entitled to severance.
Furthermore, many employees will not necessarily be offered their exact roles back if they are recalled to work. If the role that is presented following a layoff is drastically different and inferior, employees may also be able to treat that as a termination and claim severance, even though there was a recall notice.
I’ve received an ultimatum: continue working with a large reduction to my salary or be temporarily laid off and go on EI. Is this legal?
Significant changes to your employment, especially to your hours or pay, must be negotiated by agreement. Your employer can ask you to accept a pay cut and you can agree to it, voluntarily. But you cannot be forced.
Moreover, as I stated in answers to other question, a temporary layoff is only lawfully permitted in narrow circumstances otherwise, it can be treated as a constructive dismissal.
Therefore, you do not have to accept either of the options presented. Like many Canadians, you may decide that some work is better than no work at all and take the offer, but if you do, you should not waive any rights to pursue legal action later to recover the lost income (i.e. the difference in your pay).
Otherwise, if your refuse both options and your employer nonetheless implements one or the other anyway, you still have the right to make a legal claim. Whether you do so or not should be discussed with a lawyer. Many Canadians are taking a wait and see approach to these types of claims right now.
My maternity leave is ending and my employer has just announced layoffs. Will I be able to extend my EI claim?
You likely will not qualify for another EI claim as you need to have a certain amount of eligible hours before making a new claim. However, if you are unable to return to work due to a layoff, I believe you would qualify for the newly announced Canada Emergency Response Benefit which provides income support payments to workers who suffer a loss of income for reasons related to the COVID-19 outbreak.
I am being told to continue to work despite the government imposed lockdown (Ontario). The job is not on the list of essential services. Who can I report this to?
The Ontario government announced that it will be enforcing its lockdown. It is an offence under the Emergency Management and Civil Protection Act to fail to comply with an Order imposed during a declared emergency. Ontario has announced a dedicated help line 1-888-444-3659 where you may get more information about reporting non-compliance with the government’s order. Alternatively, you may consider contacting the Ministry of the Solicitor General.
Disclaimer: The COVID-19 outbreak is an unprecedented occurrence. The legal landscape engaged by these circumstances is changing constantly. The information contained on this page is generalized and is not intended to represent specific legal advice, nor does it establish a solicitor-client relationship. There may be considerations about your personal situation which make the information here inapplicable to you.
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