If you’ve reached out to an employment lawyer in the past month, then you should already know that your employer has various responsibilities with respect to Coronavirus and your job. Your employer must keep a safe and healthy work environment for its employees. Anyone who has symptoms of COVID-19 should, under law, be sent home on medical leave.
Circumstances Depending, you Cannot be Forced to Work
Depending on the circumstances, your employer cannot force you to attend work. It will depend on a number of different factors including:
- the employee’s individual medical needs
- the nature of the workplace;
- any potential safety risks; and
- what is reasonable in the circumstances.
In Ontario, it is the Occupational Health and Safety Act that protects employees from termination in the event they refuse to work due to safety and/or health concerns. If an employee meets the criteria for self isolation he or she may have a case to argue to stay home under the Occupational Heath and Safety Act.
Working from Home During COVID-19 (Coronavirus)
If the nature of the work allows for employees to be at home, then it is best recommended that the employer allow the employee to do so. If the employee is not able to work from home there is no obligation on the employer’s part to pay you while you are at home. Employees can, however, use their sick days, vacation days, etc.
If you are able to work from home but your employer won’t let you because you have young children at home then you would have a claim against your employer under the Human Rights Code. Your employer has a duty to accommodate you until it reaches undue hardship. If your employer asks you to come to work because it is, in fact, safe then you are obligated to do so.
Layoffs and Terminations
In Ontario an employer can layoff or fire an employee at any time and for any reason so long as it doesn’t violate his or her human rights and isn’t discriminatory. In a termination without cause case, the employee is most likely entitled to notice pay or severance pay, depending on the circumstances. It is the Employment Standards Act that dictates the minimum one should receive for compensation after termination. It is the Common Law that dictates the amount that one should likely receive (as opposed to the minimum).
During Coronavirus Termination will likely be ‘Without Cause’
An employer may try to say that an employee has been fired with cause. In reality, a dismissal for cause is only reserved for the worst types of workplace misconduct. Therefore, the likelihood is that a termination is without cause, especially during times of coronavirus.
You may be entitled to compensation if you are laid off temporarily due to the coronavirus. This depends on the terms of your employment contract. Absent a contract allowing an employer to temporarily lay off an employee, it may be more difficult for that employer to lay any of its employees off without paying notice or severance pay.
Essential and Non-essential Businesses
Employees who are not able to work remotely may be laid off temporarily due to the coronavirus without having to pay severance. This is the case where the province forces the business to close because it is not essential. If, however, the employee remains laid off after the province allows the business to reopen, then the employee would be owed compensation.