An employer must reimburse employee relocation expenses if it does not have specific evidence that it could have staffed a vacant position through other means, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The decision dealt with two grievances filed by Border Services Officers with the Canada Border Services Agency. Both employees had requested to move to a new city in order to fill a vacant position. Under the NJC Relocation Directive, employees who request a move to fill a vacant position are entitled to reimbursement for a wide range of relocation expenses, unless the employer can establish that it could have filled the vacant position without relocation expenses.

In both cases before the Board, the employer alleged that it could have filled the vacancies in issue with a freshly-trained recruit. At hearing, however, the employer’s witnesses testified that there were more vacancies than available recruits at the time of the grievances and that they had no way of knowing if the vacancies in issue would have, in fact, been filled if the grievors had not relocated.

The Board found that this evidence was insufficient to meet the employer’s obligation to prove that it could have filled the vacant positions without relocation expenses. As the Board concluded, the employer’s assertion that it could have filled the vacancies “must not be a hollow statement; there must be some facts behind it to back it up.” The Board therefore ordered that CBSA reimburse both grievors for their eligible relocation expenses, as the employer’s reason for refusing to do so was “without factual underpinning.”

The grievors and the Public Service Alliance of Canada were represented by Morgan Rowe.

On May 29, 2020, Ontario made new regulations under the Employment Standards Act, 2000 to address the legal effects of widespread layoffs. These layoffs arose both from employers having a lack of business and the need of many to take time off work due either to the direct or downstream effects of COVID-19 and the measures taken to lessen the spread of the coronavirus.

The Employment Standards Act, 2000 already allowed for emergency leave for employees who were infected, under mandated isolation, or caring for a close family member. The new regulations primarily provide new rights to employers who lay off employees due to coronavirus.

The regulations allow employers to avoid the  temporary layoff provisions of the Employment Standards Act which convert a temporary layoff into a termination of employment after a certain time period has elapsed. The regulations provide relief from employers by converting the temporary layoff into infectious disease emergency leave as opposed to a termination. The regulations also allow employers to stop contributing to employee benefit plans while employees are on infectious disease emergency leave.

The regulations were released on May 29, 2020, meaning that employers who laid off employees in early March will be exempt from the application of the 13-week and 35-week thresholds required for a layoff to be deemed a termination of employment.  They also deem any complaints that were filed with the Ministry of Labour alleging termination or severance of employment due to a reduction in hours caused by COVID-19 not to have been filed.

How do these new regulations affect my rights?

These new regulations primarily affect your ability to assert that your employer has constructively dismissed you by reducing your hours or not allowing you to work for an extended period of time due to COVID-19. The regulations are fairly clear that such a claim cannot be asserted against your employer with the Ministry of Labour Training and Skills Development Employment Standards Branch.

These regulations risk severely curtailing the remedies available to the some of the province’s most vulnerable workers who may face practical challenges to accessing court-ordered common-law remedies.

However, these regulations appear to only affect the Employment Standards Act, 2000, and not the common law which also provides entitlements for employees in certain situations. As a general rule, the Employment Standards Act, 2000 does not affect an employee’s ability to bring a common law claim against their employer. You may still be able to assert a constructive wrongful dismissal claim at common law if you have been laid off work or if there has been a reduction in your hours (to learn more about what you could claim, see What is Reasonable Notice?). In Popescu v Wittman Canada Inc the Ontario Superior Court confirmed that a constructive dismissal can occur despite the preconditions for constructive dismissal under the Employment Standards Act, 2000 not having been met, meaning it does not have to be a constructive dismissal under the Act to be a constructive dismissal at common law.

These new regulations may also influence the interpretation of existing employment contracts. It is possible that common-law courts will develop their own doctrines to deal with the impact of COVID-19 on employment contracts. Your ability to assert a constructive dismissal will depend heavily on the terms of your employment contract and your individual circumstances. You should seek legal advice before deciding what to do.  

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Many individuals have long term disability (LTD) benefit coverage through their employer.  These are group policies that apply to all employees in the workplace.  A group policy is a legal contract often containing technical language which may be difficult to understand.  Insurance companies will use this technical language when denying or terminating long term disability benefits.  We have identified some of the commonly used terms and have attempted to demystify them here for you.  It is always important to remember, however, that this does not replace legal advice and if you have any questions about your policy or specific situation, you should contact an experienced long-term disability lawyer.

Qualifying Period

This is the amount of time an individual must be an employee before he or she can make a claim for LTD benefits.  The qualifying period can vary depending on the policy.

Elimination Period

This is the amount of time an individual must wait between the first day he or she is unable to work due to disability, usually the first day of sick leave, and the first day they are eligible to receive LTD benefits.  The elimination period can vary depending on the policy.  Individuals who do not have access to paid sick leave or short term disability benefits can apply for EI Sickness Benefits.

Total Disability or Totally Disabled

In order to qualify for LTD benefits, an individual must meet the definition of total disability in the contract.  It does not mean that an individual must be absolutely physically or mentally incapable of doing anything related to her or his own occupation. At the outset, being totally disabled generally means that an individual is unable to perform the regular duties of her or his own occupation.   In the majority of LTD group insurance policies, the definition of total disability changes 24 months after the end of the elimination period.  At this point, in order to continue receiving LTD benefits, an individual must be unable to perform the duties of any occupation.

Own Occupation

This is the work an individual performs at the time she or he becomes disabled. The insurance company does not look at the specific job, but the occupation in general. If the insurance policy defines total disability as being unable to perform the regular duties of your own occupation, an individual is not required to find employment in a different field even if she or he can perform other tasks that are not related to her or his own occupation.  For example, a dentist would not be required to work as a clerk even if she or he can sit at a desk and use a computer.

Any Occupation

As mentioned above, most insurance policies provide a change in the definition of total disability 24 months after the end of the elimination period.  In order to continue to receive LTD benefits, an individual will be required to show that she or he is unable to perform the regular duties of any occupation.  It will be important to refer to the terms of the insurance policy as any occupation may be further defined with additional language.  Often policies will refer to any occupation for which an individual is reasonably qualified based on education, training or experience, or any occupation for which an individual may reasonably become qualified by education, training or experience.  At this point, an individual may no longer qualify for LTD benefits if she or he can perform duties of another position for which they are qualified or can become qualified. For example, if the dentist could no longer physically work as a dentist, he or she may be qualified and able to teach courses.

If you are unable to work and are applying for LTD benefits or if your benefits have been denied or have been terminated, please contact an experienced long-term disability lawyer for advice.

We are here to help navigate the LTD application process. Consult one of our experienced disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish

Paramedics working for Oneida Nation of the Thames EMS will not be subject to Ontario’s strict caps for increases in salary and compensation. In a recent arbitration for the Union’s first collective agreement, arbitrator John McNamee ruled that the paramedics employed by Oneida Nation of the Thames EMS are not subject to Bill 124, Ontario’s public sector wage restraint legislation. Had they been subject to Bill 124, it would have resulted in the Oneida Nation of the Thames EMS workers being paid less than other paramedics. The arbitrator reasoned that paying paramedics working in an Indigenous community less than other Ontario paramedics would be discriminatory.

Bill 124 became law in Ontario in November 2019 and imposed caps of 1% on increases—a rate lower than inflation—to compensation for a wide range of public sector workers. A coalition of unions is challenging the legislation in court. Bill 124 exempts Indigenous communities and employers controlled by Indigenous communities from the legislation. This was the first reported decision on the exemptions for Indigenous communities, as the paramedics at Oneida Nation of the Thames EMS sought increases of over 1%.

The EMS is fully funded by the province through an agreement between the Government of Ontario and the Oneida Nation. The EMS operates on the Oneida Settlement, land purchased by a group of Oneida who moved to Ontario from New York State in the 1840s. The Oneida Nation of the Thames has 2172 residents and 6270 members. Because the land was purchased by the Oneida and not “reserved” by the government, it is not a reserve. However, it has been treated by the Canadian government as a reserve.

The employer argued that Bill 124 applied because the Oneida Nation of the Thames EMS is a distinct entity that employs the paramedics; they are not employed by the Oneida Nation itself. It further argued that the ambulance service is not, itself, an Indigenous community and so it should be subject to the legislation.

The arbitrator rejected the employer’s argument. He found that, with the “extremely broad” definition of Indigenous employers and the fact that majority of the EMS’ members are chosen by the Oneida Nation, the legislation clearly did not apply. Further, he reasoned that this situation was exactly what the exemption was created for—that is, services funded by Ontario but carried on by an Indigenous community.

The arbitrator accepted that Ontario’s financial condition is “not at all healthy” but did not believe that this, nor the stresses of COVID-19, meant giving a reasonable award to these 18 employees, would “strain the government’s finances to the breaking point.” While COVID-19 did “immeasurably” worsen Ontario’s financial condition, he added that it also poses serious health hazards to the employees as paramedics.

The arbitrator took notice of the social context of the collective agreement, that Indigenous peoples have “not been well-served by the country as a whole, and have struggled to maintain their identity and culture in a society which has, by and large, treated them as irrelevant.” For this reason, creating EMS services by and for Indigenous people, staffed mostly by Indigenous people, is clearly a good thing. Further, any idea that employees of Indigenous communities should be paid less than EMS employees that work elsewhere is “in and of itself, discriminatory.”

As the fight against Bill 124 goes through the courts, this decision is an encouraging sign that arbitrators will not take a narrow approach to the exemptions. It is also a strong statement on the necessity for pay equity for Indigenous workers.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

In a decision released June 17, 2020, the Ontario Court of Appeal has ruled that if any element of a termination provision in an employment contract runs afoul of the Employment Standards Act, the whole termination provision is invalid.

In Waksdale v. Swegon North America Inc. the Plaintiff sued his employer after he was dismissed with two weeks’ pay in lieu of notice following eight months of service. The Plaintiff’s employment contract had a termination with notice provision, and also had a termination for cause provision. On a summary judgement motion, the Defendant Employer conceded that the termination for cause provision violated the Employment Standards Act and was invalid, but argued that it was separate from the termination with notice provision that the employer was relying on in the case. The employer also relied on a severability clause contained in the agreement.

The motions judge found that the two provisions were sufficiently separate that the termination-for-cause provision did not cause the termination with notice provision to be invalid despite its violation of the Employment Standards Act.

The Court of Appeal overturned that finding. The Court found that an employment agreement must be interpreted as a whole. The fact that two termination clauses are contained in different paragraphs in the contract, or under different subheadings, does not affect the interpretation of the contract. The termination provisions must be read as a whole if the policy goal of discouraging employers from drafting contracts that violate the Act is to be met. Additionally, the Court of Appeal found that the employer could not rely on a severability provision to cure otherwise illegal contract clauses.

This decision clarifies a somewhat unsettled area of the law of wrongful dismissal. It reaffirms the principle that a termination provision in an employment contract may be invalidated if any termination situation would result in the employee receiving less than they are entitled to under the Employment Standards Act.

The Court of Appeal’s decision also serves as an important reminder that employment contracts will not be enforced where they violate the basic protections in the Act. If you have been terminated, you should seek legal advice and not rely solely on the words in your employment contract.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Many workers have had their vacation plans put on hold by the COVID-19 pandemic, but still have vacation time to use. Here are the answers to some of the most frequently asked questions about taking vacations with pay.

How much vacation does my employer have to give me?

Your employment contract and any applicable employer policies may outline your vacation entitlements. If you’re a unionized worker, check your collective agreement.

In Ontario, the Employment Standards Act sets the bare minimum terms and conditions of employment for most workers. It guarantees an employee who has worked for an employer for less than five years at least two weeks of paid vacation after each year of employment. An employee who has worked for an employer for more than five years is guaranteed at least three weeks of paid vacation a year. These are minimums. An employer may provide more vacation to its employees, and some employees, including those represented by a trade union, may be able to negotiate greater vacation entitlements.

Some Ontario workers are exempt from this and other parts of the Employment Standards Act. The list includes lawyers, registered massage therapists and commissioned salespersons as well as workers employed in commercial fishing and on most farms. If you are one of these workers, your vacation entitlement is subject only to negotiation with the employer.

Other Ontario workers are employed by federally regulated employers such as banks, telecommunications companies and First Nations band councils. For these workers, the Canada Labour Code guarantees similar entitlements as the Ontario legislation, except that the federal legislation additionally entitles employees with 10 or more years of service to at least four weeks of vacation with pay.

What if I’ve been on leave because of COVID-19?

Some workers are eligible for infectious disease emergency leave under the Employment Standards Act or leave related to COVID-19 under Canada Labour Code as a result of the coronavirus pandemic. Workers can postpone their vacations until after the end of this leave, even if they were required to have taken it within the duration of the leave.

Is it the same for other types of leaves, too?

Yes. The Employment Standards Act entitles employees to various unpaid leaves of absence like pregnancy and parental leave, family responsibility leave and sick leave. Federally regulated employees are guaranteed similar entitlements under the Canada Labour Code, in addition to leave that enables Métis, Inuit and First Nations workers to engage traditional practices including hunting, fishing and harvesting.

Workers can defer their vacation during any such leaves. An employer cannot force employees to take vacation instead of any other leave entitlements.

I’m working from home. Can I wait until my office reopens to schedule vacation?

That may be up to your employer. An employer has the right to determine when any of its employees take vacation, unless an employee’s contract of employment or collective agreement says otherwise.

The only limit on this discretion is that employer’s must allow employees to take their vacation within ten months after the year in which it was earned.

You also cannot be forced to split up your vacation. An employer has to assign vacation in a single period of at least one week, under the Employment Standards Act, unless the employee agrees otherwise. The Canada Labour Code requires employer to approve vacation in a single period unless the employee asks to take it in more than one period.

If work has slowed down because of the coronavirus, employers may want employees to use up vacation while lockdown measures are in place. That said, an employer will typically attempt to agree with their employees when their vacation will be scheduled. In unionized workplaces, vacation may be scheduled on the basis of seniority.

What if I travel for vacation this summer?

You may want to stick close to home due to the COVID-19 public health precautions, even if lockdown restrictions are easing up in some places. The Ontario government is still advising residents to stay at home as much as possible and practice physical distancing to limit the spread of COVID-19. Anyone who may have been exposed to COVID-19 is advised to get tested and self-isolate for at least 14 days. The federal government is advising that we avoid all non-essential travel outside of Canada. It is presently mandatory for all travellers entering Canada to isolate or quarantine themselves for 14 days to limit the spread of COVD-19.

 If I don’t use it, can I lose it?

Your employment contract may limit the amount of vacation with pay you can carry over from one year to the next. If that is the case, then you may be required to forfeit any unused vacation entitlements beyond the minimum guarantees in the Employment Standards Act or Canada Labour Code. An employer can never deprive employees of these minimum statutory entitlements.

When do I get my vacation pay?

Vacation pay is due at the start of your vacation or the next regular pay day, although in some cases Ontario employers will pay their employees the vacation pay that has accrued in each pay period. Workers entitled to two weeks’ vacation must receive vacation pay of at least 4% of their gross wages in the prior year. Workers entitled to three weeks’ vacation must receive at least 6% of their gross wages in the prior year. Federally regulated employees entitled to four weeks of vacation with pay must receive at least 8% of their gross wages in the prior year.

If I don’t take vacation, do I still get vacation pay?

 Vacation pay accrues on wages earned as soon as you start working. The employer holds onto it until you take vacation. You can agree to forego vacation, if the Director of Employment Standards approves, but your employer cannot forego paying your vacation pay. But, really, you should take your vacation.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

The COVID-19 pandemic gave most Canadians a renewed understanding and appreciation for the essential, life-saving work performed by healthcare professionals. However, early on in the crisis, this appreciation felt empty to many workers who were being denied access to adequate personal protective equipment (PPE) and other measures to protect themselves and their patients.

One particularly stark example led the Ontario Superior Court to take the very rare step of intervening in the midst of a labour dispute, and ordering a group of employers to ensure that nurses had access to adequate PPE and other protective measures.

Background

At the height of the spread of the coronavirus in Canada, the Ontario Nurses Association presented grievances against four employers operating long-term care homes. The union maintained that these employers had violated the Collective Agreements, as well as health and safety legislation and public health directives, by withholding PPE from nurses and failing to implement necessary controls to prevent the spread of COVID-19 among residents and staff.

Because of the length of time it would take for those grievances to reach arbitration, the union also applied for an injunction in the Ontario Superior Court, seeking urgent relief while the grievances remained pending. The union asked for an Order that the employers allow nurses to make PPE decisions on an ongoing basis at the point of care, and that they isolate and cohort residents and the staff attending to them so that those who were infectious were kept separate from and treated by different nurses than those who were not. The Court heard the injunction request on April 22, and released its decision the following day.

Injunction decision

The Court’s decision paints a very grim picture of what was occurring in the long-term care homes. All four had experienced COVID-19 outbreaks, with over a hundred residents infected and more than fifty deaths. At least seven nurses had also contracted COVID-19, with one requiring hospitalization.

Despite this dire situation, the evidence before the Court was that nurses were being denied access to PPE, including N95 masks, on the grounds that they were scarce and needed to be conserved. This was clearly contrary to public health directives, which stated that, if a health care worker determines at point of care that N95 masks are necessary, they must be provided. The homes were also not isolating and cohorting infected residents and were allowing infected and non-infected residents to be cared for by the same nurses.

At the injunction hearing, the employers conceded that two of the three elements of the test for an injunction were satisfied—there was a serious issue to be tried in the underlying grievances, and there was a risk of irreparable harm if an injunction was not granted. They argued, however, that the balance of convenience favoured dismissing the application, because the risk to the nurses had to be balanced against the risks to all other staff and residents. The employers essentially argued that the nurses were trying to secure PPE for themselves to protect their own self-interest, at the expense of others.

The Court was unimpressed, to say the least, with this argument:

“I can imagine that the irony of that submission is not lost on the Applicants. One need only read the affidavits of the individual nurses in this Application record to understand that they spend their working days, in particular during the current emergency situation, sacrificing their personal interests to those of the people under their care. And given the nature of the pandemic, they do this not only for the immediate benefit of their patients but for the benefit of society at large. To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark.”

The Court concluded: “Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat.” The Court ordered that the employers comply with the public health directives, including providing nurses with access to fitted N95 facial respirators and other appropriate PPE when assessed by a nurse at point of care to be appropriate and required.

Extraordinary measures for extraordinary times

An injunction is a very unusual legal remedy, and the injunction in this case was particularly unusual. The fact that the Court felt compelled to intervene in the middle of a labour dispute—something it is generally reluctant to do—and order the employers to take active steps to protect staff and residents is a reflection of what exceptional times were are currently living in.

It is also a testament to the seriousness of COVID-19 and the importance of frontline workers during the unprecedented crisis that virus has caused. On that topic, two important points are worth noting.

First, the nurses who sought this injunction, as well as other public sector workers in Ontario, are all currently subject to Bill 124, legislation that caps increases to pay and benefits to a total of 1% per year for a period of three years. The Ontario government has disingenuously claimed it is unable to intervene and override this cap. However, in addition to obviously having the power to repeal the legislation, Bill 124 authorizes the government to exempt any collective agreement from the cap. Given the consensus that healthcare workers are nothing short of heroes in the current context, the government should clearly grant exemptions and allow these workers to be paid what they deserve.

Second, the Ontario government recently announced that it will allow agricultural workers to continue working even if they test positive for COVID-19, provided they are asymptomatic. Like the situation the nurses faced in these long-term care homes, this decision appears to be clearly guided by societal, economic considerations, rather than the best interests of the workers. The agricultural workers and their advocates may want to explore whether similar extraordinary legal action is appropriate to protect themselves, and the Ontario government should heed the lesson from the Court’s decision in the ONA case—the broader public good cannot come at the expense of the health and safety of workers.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

That doesn’t seem like a shocking proposition, but Uber fought up to the Supreme Court of Canada to argue Canadian courts had no jurisdiction to determine whether it had acted improperly. The Supreme Court of Canada said Uber was wrong. Now a major class action on behalf of drivers can go ahead.

Uber thought it had covered itself when it required drivers to agree that they had to make any claims by going to an arbitration in Europe, leaving them with no access to justice through Canadian courts. A strong majority decision of the Supreme Court of Canada rejected that argument and said the clause was unenforceable.

It said that the clause was unconscionable.

The Court held that the idea of going to arbitration, rather than the courts, is acceptable when it is freely negotiated between the parties.  Where unfair bargains are linked to unfair bargaining, however, the courts can protect vulnerable people in the agreements they are given to sign. The courts will look to whether one party to a deal was unable to protect their interests when the person agreed to the terms. The Supreme Court also said Canadian courts can intervene where one party is disadvantaged by terms they did not understand or appreciate. Not every standard contract can be ignored by the courts, but when they are hard to understand and lopsidedly in favour of one party, there is a good chance that some of their terms can’t be enforced.

In the Uber case, a driver would have been required to pay an up-front US$14,500 administration fee just to start the arbitration process.  For the driver in question, that was a sizeable percentage of the amount he earned in a year.  He would have to use the law of the Netherlands and was left with the impression he would have to go to Amsterdam to argue his case.  The Court found that the arbitration clause made any of the driver’s rights unenforceable in the real world.

As a result, the Court said Uber drivers can make their claims in Canadian courts. A proposed $400M claim involving the misclassification of Uber drivers can finally now proceed.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Emily McBain-Ashfield.

Asked to work but feeling ill? Your job is protected

As some regions in Ontario enter Phase 2 of re-opening, more people will be asked to return to work. If you are one of those people being asked to return to work, you may be wondering: what will happen to my job if I feel sick, but do not have any sick days?

Even without sick days, your employer cannot fire you for taking a leave due to COVID-19 related symptoms. You do not have to choose between following public health guidelines when you feel ill and keeping your job.

COVID-19 Related Emergency Leave Without Pay

Whether you work in a provincially or federally regulated industry, workers in Ontario have access to job-protected COVID-19 related leave.

Under the Employment Standards Act, 2000 (ESA), provincially regulated workers can take leave without pay if they are isolating because they have, or are suspected to have, COVID-19. Furthermore, employees can use this leave to care for others with suspected or confirmed COVID-19. Once you return to work, your employer must reinstate you to the same position with the same pay as before you took leave.

You do not need to provide a medical certificate to take COVID-19 related leave under the ESA. However, your employer can require evidence that you qualify for leave, as long as the request is reasonable in the circumstances and at the time of the leave. For example, as testing in Ontario becomes more accessible, asking for evidence of COVID-19 testing may become more reasonable.

Federally regulated employees also have job protected leave for up to 16 weeks under the Canada Labour Code (CLC) if they cannot work because of COVID-19. You must notify your employer as soon as possible about the leave, including the expected length of leave. You do not need a medical certificate to take COVID-19 related leave under the CLC.

Your job is further protected under the Human Rights Code

Disability is a protected ground under the Human Rights Code and your employer cannot discriminate against you because of a disability. The Ontario Human Rights Commission considers COVID-19 status as a protected ground under disability.  This means is you cannot be fired because of your COVID-19 status, up to the point of undue hardship on your employer. In addition, the need to care for ill family members engages the protected ground of family status. So, you cannot be fired for taking leave to care for a family member. Unless your employer can demonstrate that accommodating you causes undue hardship, your employer must accommodate you by either providing leave or an alternative working arrangement.

How will I afford unpaid leave?

Currently, your employer does not have to pay for sick or COVID-19 related leave. The Federal Government recently announced they are discussing with provinces the possibility of giving workers 10 paid sick days. However, access to 10 paid sick days is not going to happen overnight, and each province may respond differently.

If you need to take a COVID-19 related leave you have some options to receive support. You may be eligible to apply for the Canada Emergency Response Benefit or EI Sickness Benefits.

We are here to help you navigate workplace issues. Consult one of our experienced lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are facing difficulty in your workplace due to taking COVID-19 leave.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

News publications have officially declared the “death of the office”, as most of us adjust to the realities of working from home. While working from home, often referred to as telework or telecommuting, had been steadily increasing in recent years, the amount of people working from home has obviously exploded in response to the COVID-19 pandemic. With unprecedented numbers of employees working from somewhere other than their employer’s physical premises, an important question arises: if you are injured while working at home, is that injury covered by workers’ compensation?

Surprisingly, given how common telework has become, the Ontario Workplace Safety and Insurance Board has not published a formal policy addressing injuries that arise while working at home. However, WSIB’s general law and policy, as well as its few cases adjudicating claims for telework injuries, confirm that an injury sustained while working at home will be treated like any other injury—all the circumstances will be considered to determine if the injury is work-related.

Ontario’s workers’ compensation legislation, the Workplace Safety and Insurance Act, only allows for compensation for accidents that occur on an employer’s premises. However, that term is defined very broadly, as “ the building, plant, or location in which the worker is entitled to be…” To be eligible for compensation, an accident must also have occurred while the worker was performing an act incidental to her work or employment obligations.

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated very few claims for injuries sustained during telework. However, in the few cases it has decided, it has effectively taken for granted that a telework injury is not excluded from the workers’ compensation regime.

The WSIAT has granted compensation to workers who were injured in their home offices. For example, in 2019 ONWSIAT 1873, a customer service worker performed her job in her home office and developed carpal tunnel syndrome due to an increased workload. The WSIAT found that the claim had the necessary five points to be eligible for compensation: “an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history.”

This is similar to the approach taken by workers’ compensation boards in other jurisdictions. Some, like WorkSafeNB in New Brunswick, and the Workers’ Compensation Board – Alberta, have published policies or fact sheets specifically addressing when a telework injury will be considered eligible for benefits.

While telework injuries clearly can be eligible for workers’ compensation, the fact that your injury occurred while working from home may, in some cases, make it more difficult to establish that the injury is work-related. There are a wide variety of situations that are on the borderline between work and personal activities. That line between your work and personal life is likely even harder to define when you are working at home.

The Workers Compensation Appeals Tribunal of British Columbia commented on this difficulty in a 2010 decision:

…work activities and home life do not always occur in a clearly defined and distinct sequence.  It might be that a worker is at one moment in the course of employment while in the home office, but at another moment in the role of homeowner when responding to a neighbor knocking at the front door.  It is where an injury occurs in the transition between work life and personal life that coverage under the Act may be at its most complex.

So, while the fact that your injury occurred while working from home does not, in itself, disqualify you from workers’ compensation coverage, you may face added challenges in your claim, particularly if the injury occurred somewhere in that “transition” between your work life and your personal life. If you have such a borderline claim, you may want to receive advice and assistance from an employment lawyer.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]