COVID-19, and the potential threat it poses to people around the globe, is currently having an impact on every aspect of our lives and employment issues have taken centre stage. Some of the questions are, indeed, unprecedented in the modern context. These present more than legal questions. These issues raise moral and humanitarian questions as much as legal ones. This applies to both sides of the debate, not simply that of management.

The Easy Questions First

Loss of business due to the perils of this virus may cause regrettable decisions to terminate or lay off staff. Provided that there is no apparent pattern based on human rights protected grounds, this will be allowed. The usual considerations for statutory termination pay and common law or contractual notice will apply.

Keep in mind that a statutory lay off, unless contracted to the contrary, may amount to a termination, allowing for a common law and even, ironically, a statutory claim.

Discipline for The Self Quarantined

Any employer imposing discipline for those imposing a period of isolation due to suspected infection of COVID-19 will risk the wrath of all, including that of a Superior Court judge. This applies even if person in question is not ill or experiencing symptoms.

Such draconian employer action, nonetheless, will be regarded, without doubt, as action based on a perception of a disability, which most assuredly will lead to a human rights remedy and/or a claim for aggravated damages based on a breach of the implied covenant of good faith. This is clearly to be discouraged, particularly in such a moment of crisis. Note should be taken of the pending legislation referenced below.

Sick Pay

Absent a contrary contract which may provide for short and/or long term disability payments, most employees in Ontario are entitled to three unpaid, job-protected sick days in a calendar year. Does absence from work due to a self-imposed quarantine allow for payment of disability or paid sick leave? Likely so. If in doubt on this question, consider what a judge may think about an employee staying away from work to keep co-workers safe from potential infection.

Statutory Leave Periods

These are set out below. These leave periods are each set by the Employment Standards Act. All share the common characters of an unpaid leave period and job protection. The latter raises the bar as this allows for reinstatement and a ticking time clock for lost pay and benefits until the date of reinstatement. Further, a breach of any of these provisions may be used, alternatively, to support an aggravated damage claim in a civil action.

Ontario Statutory Leaves Explained

The following are the details of such protected leaves.

Family Caregiver Leave

This allows a work leave of up to 8 weeks per calendar year to care for certain family members who have been diagnosed with a serious medical condition.

Family Medical Leave

This permits up to 8 weeks of leave in a 26 week period. The time off need not be consecutive. It requires a risk of death of the family member and a medical certificate. A part week will count as a full week. If the employee requires additional time beyond the 26 week period and a medical certificate is again provided, successive leave entitlement(s) may follow.

Family Responsibility Leave

This is for a three day period per calendar year. The leave is unpaid and is job-protected. The employee need not be employed the full year to seek this leave. No medical evidence is required. The employer may request evidence that is “reasonable” to show the context of the entitlement.

Critical Illness Leave

This allows for an employee to care for a severely ill family member. The leave period is 37 weeks maximum for a child family member and 17 for an adult. Six months of employment is required in order to qualify for this benefit.

Critical illness leave may also be taken for a person who considers the employee to be like a family member. Employees wishing to take a critical illness leave for a person in this category must provide their employer, if requested, with a completed copy of the compassionate care benefits attestation form, available from Employment and Social Development Canada, whether or not they are making an application for EI Compassionate Care Benefits.

Family Member Defined

Generally, the definition of a family member is as follows:

• the employee’s spouse (including a same-sex spouse)
• a parent, step-parent or foster parent of the employee or the employee’s spouse
• a child, step-child or foster child of the employee or the employee’s spouse
• a brother, step-brother, sister, or step-sister of the employee
• a grandparent or step-grandparent of the employee or of the employee’s spouse
• a grandchild or step-grandchild of the employee or of the employee’s spouse
• a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
• a son-in-law or daughter-in-law of the employee or of the employee’s spouse
• an uncle or aunt of the employee or of the employee’s spouse
• a nephew or niece of the employee or of the employee’s spouse
• the spouse of the employee’s grandchild, uncle, aunt, nephew or niece

The Big One – Protected COVID-19 Leave

The Ontario government has announced its intent to pass legislation to protect persons taking sick leave due to COVID-19.

The government has announced its intention to introduce legislation that, if passed, would immediately provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or daycare closures. The proposed legislation would also make it clear that an employee will not be required to provide a medical note if they take the leave. The measures would be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

This will very likely allow for a reinstatement claim in the event of termination, again accompanied by the same ticking time clock for lost wages through to the date of reinstatement.

Family Status Protection

Apart from this pending statutory amendment, Ontario’s Human Rights Code allows for protection to persons needing to be absent from work or requiring an adjusted schedule to care for a family member in medical need. This also will allow for compensatory damages for injured feelings, lost wages to the date of hearing and reinstatement.

Employment Insurance Benefits

The federal government has announced that it will waive the present one week waiting period for Employment Insurance (EI) benefits related to COVID-19 cases. EI will be allowed for those persons voluntarily entering a self-quarantine period. The need for a medical certificate will be waived. The cap on EI is $573 per week, based on 60% of insurable earnings. 600 hours of insured income is required in the year prior to applying in order to qualify. Self employed workers may be eligible if they opted in at least one year prior to the application. The period of payment is 15 weeks and employers may top up the EI payments.

Unanswered Questions

There remain the issues of the obligation to allow for a safe social distance, and the need to protect elderly workers, or others suffering from pre-existing conditions, both of whom are more prone to infection. The impact of the Occupational Health & Safety Act, including the right to refuse unsafe working conditions, has yet to be effectively addressed. This will include the employer’s right to request an employee suspected of being infected to remain home. Stay tuned to this space for further updates.

Get Advice and Know Your Rights

These are difficult times for all of us. Legal issues are but one consideration. For advice on employment concerns around COVID-19 and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.