Top COVID-19 employment questions in 2020

From layoffs to back-to-work policy, these were the top employment questions of the year.

Special To The Globe And Mail – December, 2020 

My business is suffering due to coronavirus. What are the rules around temporarily laying off employees?

THE QUESTION: In light of the COVID-19 pandemic, my business can no longer provide work for a number of employees. Can I temporarily lay off these employees until my business recovers?

THE FIRST ANSWER

Natalie C. MacDonald and Mackenzie Irwin, MacDonald & Associates, Toronto, Ont.

In this unprecedented world health crisis, both employers and employees are encouraged to be as flexible as possible.

However, employers do not have the right to lay off employees, unless there is an express written contractual right to do so in the signed employment contract with the employee, where it has been done historically. So, as long as the employee provides written consent to the layoff, the business can enact a temporary layoff.

If the employer has written consent to lay off the employee, the Ontario Employment Standards Act, 2000 (ESA) allows temporary layoffs for up to 13 weeks in a 20-week period, or up to 35 weeks in a 52-week period should the employer provide a top-up in compensation and/or continued benefits. Employers must promptly issue Records of Employment (ROE) for their employees, citing an interruption in earnings as the reason for the layoff, not termination of employment.

Absent explicit written consent from the employee, or a historical practice of doing so, an employee may ordinarily claim for constructive dismissal, given that the employer is ceasing to pay the employee without an express right to do so. This will expose an employer to damages. However, in today’s current climate, that issue may not be so straightforward.

The federal government unveiled a $27-billion emergency support benefit package for businesses and workers, including emergency care benefits for those not entitled to Employment Insurance (EI) and a wage subsidy for eligible small business owners of 10 per cent of the salaries of their employees for up to three months and up to a maximum of $1,375 per employee and $25,000 per employer, in order to encourage employers to keep their employees on payroll. It also unveiled a $55-billion tax deferral program to assist employers in meeting their liquidity needs. Therefore, as the COVID-19 crisis changes by the hour, we must look to the government for continued direction.

THE SECOND ANSWER

Pamela Connolly, associate lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.

Temporary layoffs are governed by provincial Employment Standards legislation and, for federally regulated employers, by the Canada Labour Code. These provisions allow employers to temporarily lay off employees for an extended period without triggering a termination of employment and requisite severance payments. Each jurisdiction differs, with the duration ranging from weeks to months under various conditions. It is important to review the applicable legislation for the specific details. Temporary layoffs can give struggling businesses relief from making payroll during periods of economic hardship. Employees put on temporary layoff experience an immediate wage stoppage, so must be issued a record of employment coded for shortage of work (A) and can apply for Employment Insurance benefits.

Given that temporary layoffs are onerous for employees, the law has developed so that employers can only implement temporary layoffs if there is a contractual term in employment agreements allowing layoffs or if temporary layoffs are common in the industry, such as construction. Otherwise, a temporary layoff may be considered a constructive dismissal. This means that the employee has a basis to claim their employment has been effectively terminated and there is an entitlement to at least statutory severance. While employers are experiencing unprecedented financial challenges that require flexibility, there has been no express change to the law in this area.

To answer your question, whether you can safely temporarily lay off employees will depend if you meet the above criteria. If reducing your workforce cannot be avoided, it may be necessary to assume the risk of temporary layoffs or even terminate employment with working notice or pay in lieu, with the hope of rehiring employees later on. A temporary layoff may actually be beneficial for both parties where employees are otherwise unable to work due to childcare or other responsibilities. I recommend speaking to an employment lawyer about creative solutions and financial exposure in order to choose the right approach.

My boss wants me to self-quarantine without pay. Is that legal?

THE QUESTION: 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?

THE FIRST ANSWER

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.

THE SECOND ANSWER

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.

My boss insists we come to the office and doesn’t enforce mask use. Do we have the right to work from home?

THE QUESTION: I work for a real estate investment firm, and it is absolutely not essential for my colleagues nor I to be in the office, but the owner of the company prefers we be there for his own socializing purposes. The office has provided hand sanitizer but otherwise does not enforce the use of masks or physical distancing. We still have plenty of crammed boardroom meetings. I’m in Ontario, so with the rollback to Stage 2, do we have the legal right to work from home? We are 100-per-cent equipped to do so and very much capable.

THE FIRST ANSWER

George E. Cottrelle, partner, Keel Cottrelle LLP, Toronto

Employees are legally obligated to report to work in their employer’s workplace, if required by their employer, even if they are able to perform all of their job functions from home.

There are exceptions, such as where working remotely is a term of the employment agreement, or if the employer is required to provide this specific accommodation under human-rights legislation or employer policies.

Employers in Canada have a legal duty to provide a safe workplace. In each province, there are specific COVID-19 rules for workplaces. Certain provinces and/or municipalities have legislation requiring that masks be worn in indoor public spaces, which is also the recommendation from federal and provincial health authorities. In Ontario, it is mandatory that masks be worn inside all workplaces, subject to exceptions, including where the workplace area is not open to the public and a distance of at least two metres is maintained between workers.

Workers in Canada, subject to applicable health and safety legislation, have a statutory right to refuse work, without reprisal, that they reasonably believe to be unsafe, which may include all or part of the workplace. Your employer is not following the COVID-19 requirements governing all businesses in Ontario regarding the use of masks and physical distancing in the workplace.

You need to advise your employer of your workplace safety concerns. If your employer fails to make the necessary changes, you should contact the Ministry of Labour. In the interim, if you feel the entire office is unsafe, and not just the meetings, advise your employer you are working from home until the matter is resolved.

You do not have the right to work from home as a matter of your preference, but you do have the right to refuse to work in an unsafe workplace.

THE SECOND ANSWER

Matthew Bobawsky, associate, Carbert Waite LLP, Calgary

It sounds as though you are asking if your employer can require you to work in an unsafe workplace. Employers generally have the right to direct how their business operates, including the right to determine where their employees work. However, legislation, such as occupational health and safety legislation, and your workplace’s policies may restrict that right.

Each of the provinces has occupational health and safety legislation designed to protect an employee’s health and safety while they are at work. According to these laws, employers have the obligation to take reasonable and practical steps to ensure the health, safety and welfare of their employees. To fulfill this obligation, your employer could enforce the use of face masks or implement physical-distancing measures at work.

You also have the right to refuse unsafe work and are protected from reprisals when you exercise that right. When you refuse work because it is unsafe, your employer will then have the obligation to investigate and take steps to make your workplace safe.

It is important to note that the right to refuse work, which is triggered by an unsafe workplace, is not the same as the right to work from home. The right to work from home is a legal privilege granted by employers under a telecommuting policy. Telecommuting policies allow employees to work remotely or from home provided the employee meets the policy’s eligibility requirements and has demonstrated an ability to work independently.

I’ve been asked to return to work but I’m afraid to do so. Can I still collect CERB in this situation?

THE QUESTION: I am a server and the restaurant I used to work at has asked me to return to work but I don’t feel safe interacting so closely with customers. What rights do I have to still collect CERB in this situation? What responsibilities must be met by the restaurant? I want to work but I’m afraid to do so. The servers are also being asked to clean the bathrooms since the restaurant can’t afford to pay cleaners any more. Is this allowed?

THE FIRST ANSWER

Lindsay A. Mullen, Partner, Norton Rose Fulbright, Calgary, A.B.

The main consideration in this server’s question is related to workplace safety in light of COVID-19. As businesses gradually welcome returning employees back to the physical workplace across Canada, the provinces have published guidelines and recommendations on sector-specific reopening plans. Generally, guidance provided on such plans sets out what measures and precautions employers and service-providers must or should adopt to protect the health and safety of their employees and customers in light of COVID-19; this includes health screening, enhanced hygiene, face masks, physical distancing and workplace sanitation.

In all provinces, employees have the right to refuse work if they have reasonable grounds to believe their workplace is not safe. Accordingly, the server should compare his or her restaurant’s protocols to the published guidelines. Any concerns should be specifically addressed with management. If the restaurant is not meeting the guidelines, the server may be able to refuse work.

With the enhanced workplace sanitation, employees may be asked to sanitize all commonly-touched surfaces or areas such as entrances, counters, chairs, tables, washrooms, shared equipment and kitchens. As such, the request for servers to assist in cleaning, including washrooms, is not unreasonable in the circumstances. Finally, the server may be eligible for CERB if he or she has stopped working because of reasons related to COVID-19; it is important to contact either Service Canada or Canada Revenue Agency to determine eligibility for CERB in light of the individual’s circumstances.

THE SECOND ANSWER

Randy Ai, Principal Lawyer, Randy Ai Law Office, Toronto, Ont.

All employers are obligated to provide a safe environment for their employees under the Ontario Occupational Health and Safety Act. As a restaurant worker, your employer is responsible for providing you with personal protective equipment (masks, gloves etc.) to reduce the risk of COVID-19 transmission. Your employer should also enact policies to ensure that you are working in a clean environment (for example, supplying hand sanitizer). When you are interacting with customers, I recommend that you protect yourself with personal protective equipment. Your employer is also responsible for reminding customers of their legal and health responsibilities when they are dining at the restaurant. The law allows you to refuse unsafe work if the employer is forcing you to conduct work that would endanger your health.

If you are immunocompromised or have a pre-existing disability, then you should remind your employer of their obligations under the Ontario Human Rights Code to accommodate you. Some employees cannot return to work because of their health or disability status. If this is the case, you should clearly communicate your request for accommodation to the employer, and make them aware of the reason as to why you cannot return to work.

If your tasks and responsibilities have been unilaterally changed without your consent, then I recommend that you speak with a lawyer about your legal rights, and specifically about your rights to claim constructive dismissal. It is illegal for the employer to make significant and fundamental changes to your job description without your consent. Depending on how often you are required to clean the washroom, and whether this now overshadows your regular duties, you may have the right to claim constructive dismissal.

I was transferred to another role at work and they won’t move me back. Is this legal?

THE QUESTION: My department is split into two teams. I was transferred from one team to the other without notice and into a significantly different role, in which I have no interest. After some time, I asked the head of the department if I could move back into my previous role but his response was that I should look for another job. Is this legal?

THE FIRST ANSWER

Busayo A. Faderin, senior associate lawyer, Monkhouse Law, Toronto

The short answer to your question is that it depends. Employers have a right to make business decisions as necessary to direct their organizations. However, those decisions must be made against the backdrop of the contractual employment relationship.

If the new role you have been placed in, without your agreement to the change, is substantially different from the role you initially had, it could potentially be considered a constructive dismissal at law. A constructive dismissal occurs when there has been a fundamental change to a term of the employment agreement and the change is made unilaterally by the employer without the employee’s consent. As a result, the employee may be forced to quit. Quitting under such circumstances, however, is not considered a resignation.

It’s important to act fast, yet wisely, if you think you may have a constructive dismissal claim. Time is of the essence and you must act strategically. If you continue to work in the new role for an extended period of time, despite your initial request to return to your original position, you may be considered to have acquiesced to the changes. This means you would be considered to have accepted the new changes and conditions to your role and will have forfeited any claim of constructive dismissal. Given the complexity of these claims, getting prompt legal advice that accounts for your individual circumstances is key. A lawyer can assist with explaining the strengths and weaknesses of your claim and help you with your exit plan.

THE SECOND ANSWER

George Huang, lawyer, Guardian Law Group LLP, Calgary

Under employment law, this situation may be grounds for constructive dismissal. Constructive dismissal occurs when the essential terms of employment have been substantially changed. This analysis would be heavily fact-driven depending on how significantly your role has changed.

You need to review your employment contract to see whether this new role is contemplated in your employment contract. If your employment contract stipulates that you may be required to perform the tasks in your new role, then you have a weaker case for constructive dismissal. The caveat is that the new role does not result in any decrease in salary, a significant change in work hours or work location, or decrease in job title prestige, or any other detriment to you. However, if your employment contract does not contemplate the tasks outlined in your new role, then you have grounds for constructive dismissal. An example of constructive dismissal due to significant change in duties is if an employee was hired as counsellor and later unilaterally transferred to clerical duties.

I would recommend you discuss your disagreement with the role change with your human resources department. You can explain how your employment contract is for a different role and outline your concerns. If they refuse to return you to your previous role, then you can seek a constructive dismissal claim. If you are successful in claiming constructive dismissal because your employment duties have significantly changed, then you are eligible for a severance package and likely other monetary remedies from your employer.

Does my non-competition clause still apply after I was laid off due to COVID-19?

THE QUESTION: I was laid off because of COVID-19. I had a non-competition clause in my employment contract. My only employable skill is in this field. Does the non-compete still apply if I was laid off?

THE FIRST ANSWER

Susanna Allevato Quail, Partner, Allevato Quail & Roy, Vancouver

The effect of a non-compete clause does not change if you were laid off rather than quit or terminated for cause, so, to answer your specific question, yes, your non-compete clause applies even if you were laid off. However, if your non-compete clause prevents you from getting a new job in your field at all, it may not be enforceable.

There are significant restrictions on non-compete clauses in Canadian law. An employer seeking to rely on a non-compete clause has to prove that the clause is justified. A non-compete clause that goes beyond what an employer reasonably requires to protect its legitimate business interests is likely to be struck down by a court. A non-compete clause that makes it effectively impossible for a former employee to earn a living in their field is also likely to be struck down. If your former employer isn’t willing to waive your non-compete clause, it would be a good idea to have a lawyer review the specific facts of your situation.

THE SECOND ANSWER

Samia Hussein, Lawyer, Sherrard Kuzz LLP, Toronto

As legal counsel for employers, I regularly advise them through navigating non-competition clauses. A non-compete clause is critical to protect an employer from an employee that has acquired significant knowledge and influence over an employer’s business. The clause prevents the employee from unfairly competing with the employer when they depart from the company.

In most cases, if an employer includes a non-competition clause in an employment agreement, it will apply to any situation where employment has come to an end, including if employment has ended because of a permanent layoff, often described as a “without cause” termination. However, in some cases, the employment agreement will limit the non-competition clause so it only applies if the employee resigns. Whether it will apply in any one situation may depend on the terms of the individual employment agreement and whether there are any restrictions post-employment.

In assessing whether a non-competition clause is enforceable, courts will ask: 1) How long is the period of the non-compete; 2) to what cities or regions does it apply; and 3) what type of business activity does it prohibit? Assuming the clause has been drafted clearly and reasonably, the employer and employee should expect that the clause will apply postemployment.

I think my boss used COVID-19 as an excuse to get rid of me. What can I do?

THE QUESTION: I got a new supervisor last year and we have never gotten along. I feel like she has been trying to get me fired for months because I haven’t met certain targets. The business has been affected minimally by COVID-19 and I was the only one on my team that was laid off. They claim it was due to the pandemic, but I think they just used it as an excuse to get rid of me. What can I do?

THE FIRST ANSWER

Steven Boorne, Lawyer, HHBG Employment Lawyers, Vancouver:

In order for an employer to lay off an employee, an employee must give consent to the layoff, whether in the moment or previously as part of an employment contract. If an employee does not consent, the layoff constitutes a termination.

An employer will often opt for a layoff, as opposed to an outright dismissal, for two key reasons. Employers can defer paying severance for the period of the layoff while at the same time keeping their options open for rehiring.

A layoff can last for only 13 weeks, after which the employee needs to decide whether they want to treat the layoff as a termination or carry on in the hopes of being rehired. Each situation is unique. Sometimes an employer will send a letter of termination at the end of this 13 weeks.

Once a person is terminated, an employer must pay severance, vacation pay and any other outstanding wages within what is usually a 48-hour period.

Employers don’t need a reason to fire an employee. So, even if a company bears a grudge against a staff member, unless it’s a human-rights violation, the company has the right to fire the employee without explanation.

An employee can inquire about alternative solutions to a layoff. The federal government recently introduced a new Canada emergency wage subsidy, which can provide eligible employers with a 75-per-cent subsidy of an employee’s wages for up to 12 weeks.

An employment lawyer can provide advice about options and help strategize an optimal way to approach an employer.

THE SECOND ANSWER

George Cottrelle, Partner, Keel Cottrelle LLP, Toronto:

Employment legislation across Canada allows for temporary layoffs for different time periods. Certain provinces have expanded the layoff provisions in light of COVID-19. Layoffs have been widely implemented by employers in Canada in response to the pandemic.

While temporary layoffs are permitted under Canadian legislation, the existing common law jurisprudence provides that unless there is an express or implied provision in the employment relationship, a temporary layoff is a substantive change in the terms of employment, and constitutes constructive dismissal.

There is disagreement amongst employment lawyers whether temporary layoffs because of COVID-19, in businesses permitted to remain open, will be viewed as constructive dismissal by the courts.

Any exceptions by the courts to the current law of constructive dismissal will be based on situations where employers are genuinely and significantly affected by the current economic circumstances. Employers who use COVID-19 as a pretext for reducing their work force, or singling out employees for layoff or terminations for other reasons, should expect to be dealt with harshly by courts.

Your employer’s business was minimally affected by the pandemic, and you were the only employee on your team who was laid off, for reasons which you reasonably believe were entirely unrelated to COVID-19. The temporary layoff constitutes constructive dismissal.

You should advise your employer that you do not accept the layoff and are reserving your rights. If your employer recalls you to your same position, then you may either return to work or treat your employment as terminated for constructive dismissal; but in either case, your claim for damages will be limited to your lost wages and benefits during your layoff period. If your employer does not end the layoff within the maximum period permitted by the applicable legislation, then you should assert your wrongful dismissal claim.

In the interim, you should apply for the Canada Emergency Response Benefit.

If my employees don’t come into work because they want to stay on CERB, do I have any rights?

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.

My manager recently asked everyone on our team if we’re interested in taking unpaid leave. Is this legal?

THE QUESTION: My manager recently asked everyone on our team if we’re interested in taking unpaid leave. Is this legal? If I take a voluntary leave and then I get terminated, am I still entitled to the same amount of severance?

THE FIRST ANSWER

Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto

The employer is likely seeking volunteers who would prefer to stay home and receive the Canada Emergency Response Benefit (CERB) before implementing more severe measures such as reductions to compensation, layoffs or terminations. I see no issue with the employer’s approach in seeking volunteers first.

If the employee does choose to take a voluntary leave and is ultimately terminated, the period of time that the employee was on leave should be counted toward the employee’s service when determining how much severance they are entitled to. In other words, the leave should not reduce the amount of severance to which the employee is entitled.

However, the employee should be aware that if there is a period of time during which they are receiving employment insurance or CERB benefits, and this period of time overlaps with a period during which they receive severance pay from the employer, they will likely have to repay the EI or CERB benefits received during the overlap.

THE SECOND ANSWER

Eric Lam, lawyer, Taylor Janis Workplace Law, Calgary

An employer may lay off employees temporarily, so long as it follows strict requirements under the relevant provincial employment standards legislation for notice of layoff and recall. The standards vary by province as to what constitutes an appropriate length of layoff before the layoff becomes a termination of employment.

However, you are not required to voluntarily accept an unpaid leave and an employer should not change the fundamental terms of their employee’s contractual relationship without consent. If an employer makes changes regardless or fails to follow provincial employment standards legislation, this would constitute a constructive dismissal.

A constructive dismissal occurs when, without providing a formal termination, an employer unilaterally changes the fundamental terms of the employment relationship such that a reasonable employee in similar circumstances would understand their employment contract to be ended. In such instances, the employee is entitled to resign and seek damages against their employer as if they had been formally terminated.

The damages associated with constructive dismissal are the same as those for employees who have been terminated. A court would review the employee’s age, length of service, role and the availability of other work to calculate what amount of pay in lieu of reasonable notice would be appropriate in the circumstances.

If you choose to take a voluntary leave and are terminated upon recall, you would be entitled to the same termination pay under provincial employment standards legislation and reasonable pay in lieu of notice as severance as if a leave had not been taken.

Do I have to return to my retail job even though I am afraid of COVID-19?

THE QUESTION: I work in retail and my employer wants me to return to work now, but I am frightened to do so. What if I get COVID-19? Do I have to go back to work?

THE FIRST ANSWER

Natalie C. MacDonald and Mackenzie Irwin, MacDonald & Associates, Toronto

As long as the employer is meeting all of the safety guidelines outlined by the provincial and federal governments, you must return to work. It is the employer’s obligation to stay current on what those guidelines entail and ensure that they are being followed in the workplace.

Nevertheless, many employees will be nervous about re-entering the workplace, which is why it is imperative that now, more than ever, employees and employers engage in an honest discussion about what steps can be taken to ensure that employees feel safe at work.

If an employee does not feel that their employer is doing enough to protect them from COVID-19 and following the government safety guidelines, he or she can exercise their right to refuse unsafe work and file a complaint with the provincial Ministry of Labour. This work refusal must be based on a specific condition in the workplace that is making the employee feel unsafe and cannot simply be that the employee is frightened. Once a complaint is made, the Ministry of Labour is required to inspect the workplace and determine whether it is safe.

Employees who refuse to report to work, when their employers are adhering to all of the safety guidelines, may be at risk of being considered to have abandoned their job, making them ineligible for the Canadian Emergency Response Benefit and employment insurance.

However, there will be some exceptions to this obligation to return to work, given that accommodation may be required for individuals with compromised immune systems, medical conditions and those who have child-care obligations.

If you, however, unfortunately, contract COVID-19, you have an obligation to immediately inform your employer so that they may immediately inform other employees and perform a thorough disinfection of the workplace.

THE SECOND ANSWER

Sarah V. Coderre, managing lawyer, Taylor Janis LLP Workplace Law, Calgary

If you have received medical advice recommending that you should not return to work because you’re at higher risk of adverse effects from COVID-19 (e.g. over 65, underlying medical conditions, etc.), then you would be entitled under human rights legislation to ask your employer to accommodate your medical restrictions by extending your layoff or leave of absence from the workplace. If you are not at a higher risk of becoming seriously ill if you were to contract COVID-19, then you would not have any legal right to remain on a layoff or unpaid leave of absence.

However, you do have legal protections under occupational health and safety (OH&S) legislation. OH&S legislation across Canada requires that employers remove hazards from the workplace, such as harmful biological substances, in order to provide their employees with a safe working environment. Your employer must take steps to ensure that the workplace is safe for you to return, including implementing public health guidelines such as requiring staff to take their temperature upon attending work and complete a questionnaire confirming no symptoms, supplying proper handwashing facilities and hand sanitizer, supplying staff with face masks and gloves, installing social distancing measures such as plexiglass shields to separate cashiers from customers, requesting that customers pay through debit and credit cards rather than cash and placing signage throughout the business to enforce social distancing.

You have a right to know if your employer has instituted any of the policies required by public health authorities prior to you returning to work. If not, you could refuse to return to work due to unsafe work conditions and report the company to your local OH&S authority. OH&S officers would then be sent to inspect your workplace and would provide your employer with an order to address any deficiencies in their policies.

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