I recently went on vacation to Mexico and, because of the coronavirus, my boss wants me to self-quarantine at home for two weeks as a precaution. My job can’t be completed remotely so they said I will not be paid during the quarantine period. Is this legal?
Mika Imai, Associate, Karimjee Law, Toronto: At the outset, it’s important to note that these are unusual times. Ordinarily, if an employer cuts pay for two weeks, there could well be a case of constructive dismissal. Constructive dismissal essentially means that even though your boss didn’t explicitly terminate your employment, they effectively did so by breaching a fundamental term of the employment relationship. You could then seek some form of notice/severance entitlement.
Another claim you could ordinarily make is simply to seek the two weeks’ pay and stay on as an employee.
Having said that, medical recommendations are now for anyone who has travelled out of Canada to self-quarantine for 14 days. Thus, your boss’ order for you to stay home would certainly be seen as reasonable, particularly in light of their obligations under the Occupational Health and Safety Act to keep the workplace safe.
Plus, when it comes to pay, it may even be that the typical expectation is loosened if your workplace is in financial difficulty due to COVID-19, an unexpected, intervening event.
Keep in mind as well that claiming constructive dismissal will be difficult if you have an employment contract that permits temporary lay offs or if your two-week pay cut is small because you had few scheduled shifts during the quarantine period.
In the circumstances, I’d suggest a cautious first step. Check to see if your workplace has a sick leave policy that entitles you to sick pay and/or personal days. Then consider talking to your boss, assuming you feel comfortable to do so. Explain your concerns and ask if there are creative work from home options, or see if you can be paid during the self-quarantine, whether through standard salary or as sick pay.
If your boss says no, and while you decide if/how you want to escalate the issue, you could apply for employment insurance – the waiting period was recently removed for people quarantined for COVID-19.
Jason Edwards, Associate, Pink Larkin, Halifax: This is a difficult situation. If you’re like most people, losing two weeks of pay is a serious hardship.
First, check your employment contract, benefit plans and employer policies for any terms that might be helpful.
Generally, your employer can put you on temporary layoff for two weeks. The employer needs to provide you a Record of Employment so you can apply for Employment Insurance (EI) benefits. EI is not ideal because (1) Service Canada will take a long time to process your application, (2) EI only pays a fraction of your full salary and (3) you will not be paid for the first week off.
At the time of writing, the federal government has announced it is altering EI sickness benefits to provide payment for the first week. This only applies to people who are actually sick or forced into quarantine by law or at the direction of a public health official. Stay up to date with Public Health Agency of Canada directives.
It is also worth noting your employer is prohibited from discriminating against you based on race, ancestry, place of origin, colour, ethnic origin, citizenship, etc.
If you’re in a union (you should be!), check your collective agreement and talk to your union representative right away.
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