March 16, 2020
by Israel Foulon Wong LLP

Summary

Since our March 13, 2020 E-Bulletin, there have been even more announcements of which employers should be aware (a few of which are listed below):

• The federal government has announced that Canada will be shutting the border to non-Canadian citizens, with the exception of permanent residents, their immediate families, diplomats and U.S. citizens. Starting March 18, 2020, only four airports will generally be allowing international flights: Toronto, Montreal, Vancouver, and Calgary. Everyone returning from abroad is being told to self-isolate for 14 days. Airlines will also be required to refuse passage to people with COVID-19 symptoms. The government will set up a support program for Canadian travellers abroad.
• The Ontario government has announced that it will be introducing legislation that provides for job protected leave for employees who are under medical investigation, supervision, or treatment for COVID-19 or if they are in isolation or quarantine. Employees will not be required to provide medical documentation for this job-protected leave. Unlike in Alberta, it appears that this job protected leave will be unpaid. The timeline for the legislation is unclear but it will be expedited. Importantly, the legislation will be retroactive to January 25, 2020.
• Employment and Social Development Canada has set up a dedicated website with regard to its programs (Worksharing, EI benefits, etc) as they relate to COVID-19: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html
• Service Canada has set up a dedicated toll-free phone number for employees in quarantine who are seeking to waive the one-week EI sickness benefits waiting period: 1-833-381-2725 (toll- free). We expect that it will be very difficult to reach Service Canada and therefore visiting the website for information is likely the best course of action. Again, given that EI is solely a government decision, employers should ensure that they make no assurances or pronouncements regarding workers’ eligibility or the amount of EI benefits that would be received.

Given the exceptional and unprecedented situation, we expect further developments in the coming hours and days. In particular, it is expected that the federal government will be announcing financial support for Canadian in the coming days.

Frequently Asked Questions

*The following is for general informational purposes only. We strongly encourage you to seek legal advice pertaining to your specific matter prior to taking any action.*

Q: How should employers deal with employees who have recently returned from international travel?

A: This situation is very fluid. As of Friday, our advice to employers is that employees who have left Canada, or who are exhibiting any COVID-19 symptoms, or who have been in direct contact with a known infected person, should self-isolate for 14 days and not return to work until they are symptom free for 14 days.

Q: Should time off for self-quarantine be paid or unpaid?

A: Employees should be told to access paid sick time (if any) and that they may wish to then use lieu time/vacation time. Employees should also be told to contact Service Canada as they may have quick access to EI benefits given the new programs that are being put forward by the federal government. There are risks that an employee could say that they have been constructively dismissed (if time off is unpaid) or discriminated against, or sue for lost pay, but we believe that courts would be unreceptive to such arguments in the context of the current crisis.

Q: Will employees be entitled to EI if their hours are reduced?

A: The federal government is promising to make EI access easier for anyone who is out of work because of COVID-19. This could be broad enough to cover hour reductions but the details of this are still not fully known. Employees should always be referred to Service Canada website to determine EI eligibility. In general, employers should not give definitive advice to employees about EI eligibility but rather give the employee Service Canada’s website and phone number, and advise that they may be able to access benefits.

Q: What happens if an employee/client/customer tests positive?

A: Anyone exposed to a person who tests positive should self-quarantine for 14 days.

Q: What if a partner/family member has travelled outside of Canada but the employee has not?

A: The situation is fluid but at present we are only recommending that employers require self-quarantine if the employee has travelled outside Canada, or has been exposed to a person with a confirmed case or if the employee is experiencing COVID-19 symptoms. In the circumstances, it may be best that the employee work from home (if at all possible) or asked to voluntarily self-isolate.

Q: Who should be advised if an employee/client/customer tests positive for COVID-19?

A: If an employee/client/customer tests positive for COVID-19, the employer would be generally obligated to advise all employees and clients/customers who were exposed to the individual. As little personal information as possible should be provided in order to protect privacy.

Q: What happens if an employee says they cannot attend work due to child care issues and they are unable to work from home due to their position?

A: Employees are expected to take reasonable steps to find childcare. If the employee cannot do so, the employer will be required to accommodate the absence without discipline and without pay (the employer may choose to allow access to paid sick time/lieu time/vacation time if available). It is possible that the employee will be able to access EI. T he employee should contact Service Canada.

Q: Are employers entitled to layoff employees?

A: There is no general right to lay off employees absent a contract term that provides for same or accepted past practice, among other situations. In the absence of the above, there is a risk that an employee could assert that the layoff amounts to a constructive dismissal. However, we do not think that a court would be very sympathetic to such a claim in the current emergency circumstances.

Q: What are the requirements for a layoff?

A: As outlined above, there is no general right to layoff employees (under common law), and this could lead to a constructive dismissal claim. Under the Employment Standards Act, 2000, a temporary lay-off can continue for up to 13 weeks in a consecutive 20 week period without becoming a termination. This time period can be extended to 35 weeks in a 52 week period if you continue to pay the employer portion of any benefits plan with the employee making its matching contribution – if any (or if other criteria is met).

Israel Foulon’s Response to COVID-19

Israel Foulon is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.