With the COVID-19 outbreak, circumstances are changing by the hour. These are unsettling times and there is uncertainty for employees, employers and unions alike. What is important is that all have to be committed to the health, safety, and well-being of both workers and management.

Many workplaces are issuing a work from home policy to avoid the spread of COVID-19. You may be able to continue to perform work through alternate arrangements (work from home, shifting work hours, heightened safety measures). Employers will be required to take reasonable steps, to the point of undue hardship, to accommodate employees required to stay home because they are ill, caring for someone who is ill, or caring for children.

However, this is only an option if you are able to work productively from home or through alternate arrangements. Some workplaces have work where it is not possible to work remotely or to shift the working hours. This, combined with the decreased demand in some industries, means that employers are closing or laying off employees, and it can be difficult to know your entitlements.

Can I Be Laid Off or Fired?

You cannot be laid off or fired for having COVID-19. But while the government has not said that people shouldn’t go to work, some businesses are being forced to close (either by the government due to their industry or due to lack of customers).

If your employer must shut down its business, they should notify you when they start work again. As the Ontario government has stated, nobody will be penalized for complying with government mandated emergency measures.

Whether or not you can be laid off, and your entitlements if you are laid off, depend on a variety of factors:

1. Are you unionized?

a. If the answer is yes, contact your union. Your entitlements will likely be governed by your collective agreement.
b. If the answer is no, go to number 2.

2. Do you have an employment contract?

a. If the answer is no, go to number 5.
b. If the answer is yes, check if the contract has a clause about temporary lay offs where it specifically allows the employer to lay you off temporarily and recall you (this is different than a termination provision that talks about your entitlements when the employment ends):

i. If the answer is no, go to number 5.
ii. If the answer is yes, read it. Check if it complies with the temporary layoff provisions of the legislation that apply to you.
For provincial employees, see number 3.
For federal employees, see number 4.
If the provision complies with the legislation, then it will govern your temporary lay off.
If the provision does not comply with the legislation, go to number 5.

3. Under the Employment Standards Act, 2000, for provincial employees there are temporary layoff provisions at s. 56. If your contract allows for temporary layoffs, the contract must comply with the provision in the legislation:

a. It cannot be more than 13 weeks in any 20-week period.
b. If it is more than 13 weeks in a 20-week period, then it may still be a temporary lay off if it is not more than 35 weeks in a 52-week period and:

Pension and/or benefits were continued;
i. The employee was still being paid;
ii. The employee worked somewhere else during that time;
iii. The employer recalled the employee during that time;
iv. The employer recalled the employee within the time set out in an agreement between the employer and employee; or
v. The employee received supplementary unemployment benefits.

Even if the provision in your contract is valid, if your temporary layoff exceeds the timelines set out in the legislation, you may be entitled to notice, or pay in lieu of notice.

4. The Canada Labour Code for federal employees dictates that a layoff is not a termination of employment so long as:

a. The layoff is less than 3 months;
b. The layoff is more than 3 months and less than 12 months and the employee has recall rights under a collective agreement;
c. The layoff is more than 3 months and:

i. The employee is still being paid;
ii. The employer continues to pay into the employee’s pension;
iii. The employee received supplementary unemployment benefits;
iv. The employee would be entitled to supplementary unemployment benefits but is disqualified; or
v. The employee is given a fixed date of recall at the time of layoff, that date is within six months of the layoff, and the employee is actually recalled on that date.

Under the Code, any periods of re-employment that are less than two weeks in duration are not included in calculating the length of the layoff.

Even if the provision in your contract is valid, if your temporary layoff exceeds the timelines set out in the legislation, you may be entitled to notice, or pay in lieu of notice.

5. If you do not have an employment contract, or the contract does not have a temporary lay off provision and temporary lay offs are not an industry norm, or if the temporary layoff provision in your contract does not comply with the legislation, then your employment regarding temporary lay off is governed by the common law. At common law, there is no right for the employer to “temporarily” lay you off. Therefore, if you are laid off by your employer, this may be a constructive dismissal and you may be entitled to notice, or pay in lieu of notice.

The amount of notice will depend on a number of factors (including if your employment contract has a termination provision laying out your entitlements when your employment ends).

It should be noted that in these uncertain times, courts and tribunals may deal with layoffs and terminations differently. While this is the current state of the common law, it is hard to know how courts will proceed.

What Happens if I Cannot Work?

You should inform your employer immediately if you are not able to work for any of the following reasons:

• You are taking care of children or an elderly at risk person.
• You have symptoms of coronavirus.
• You have been in contact with someone who has the symptoms of corona virus.
• You have returned from another country.

No disciplinary measures should be taken if an employee cannot come to work, as was outlined by the Government of Ontario in a statement on Monday.

However, an employer is not obligated to pay you if you are self-isolating or not working. If you are able to continue to work through alternate arrangements, your employer must continue to pay you. As noted above, employers will be required to take reasonable steps, to the point of undue hardship, to accommodate employees required to stay home because they are ill, caring for someone who is ill, or caring for children. This can include working remotely or working alternate hours. The alternate arrangement does require that the employee is engaging in productive work. It is only if there are truly no alternate options available that an employer can stop paying the employee.

If no alternate arrangements can be made, employees should try to access sick days or other types of leave. Employees may also want to make inquiries into the short-term disability plan, if they are covered by one through their employer. Employers are being asked to not insist on a doctor’s note, in order to avoid overloading the already extremely busy health care system. 

How do I Apply for EI?

If an employee is not covered by a short-term disability plan at work, they can apply for sick-leave through Employment Insurance (“EI”). For up to 15 weeks, EI benefits will pay up to 55% of your weekly salary, to a maximum of $537 per week. The Government is working to expand EI benefits to cover those affected by the COVID-19 pandemic. You will qualify for EI if:

• You pay EI premiums (usually a deduction made by your employer) or you are self-employed and have opted into EI;
• You have lost at least 40% of your usual weekly pay; and
• You worked at least 600 hours in the 12 months prior to the claim.

A medical certificate is normally required to access EI sick-leave benefits. The government has waived this requirement for those ordered to go into quarantine by law or a health official. The requirement for a note for other applicants is still up in the air, as the Government continues to adjust the system to adapt to the changing circumstances.

There is also usually a waiting period (one week) after an EI application, but that one week waiting period is currently being waived.

Conclusion

If you can, you should speak to an employment lawyer to understand your rights during a lay-off or termination, as your entitlements will be very fact-specific to your circumstances. This is always true, and in these uncertain times courts and tribunals may deal with layoffs and terminations differently.

It is important to keep up to date with federal, provincial, and municipal government instructions on how to act during this COVID-19 state of emergency. Federal and provincial governments are issuing updates daily – sometimes several times a day.

Unions and coronavirus. Some may wonder what the connection could be between these two words.

The connection is not so strange as you might think. Unions have worked for a century or more to improve terms and conditions of employment. That has included championing sick and disability leave benefits. When quarantine was a more common practice, unions negotiated pay maintenance provisions for people who were quarantined. Unions themselves are also employers whose employees get sick from time to time. The list goes on.

At a time when the extent, seriousness and consequences of the current coronavirus outbreak are not yet fully known, it is important for unions to turn their minds to the problems potentially caused by the virus and its spread and what measures to take to make sure employees are protected.

For some time, unions have been trying to help employers understand the pitfalls of presenteeism. That’s the phenomenon where someone attends work because they can’t afford to miss a day’s pay, because they are afraid of the consequences when they take time off work during a probationary period, or they misread the employer’s signals about loyalty and dragging yourself into work when you just don’t feel up to it.

The goal for unions is to protect the employee from wage loss if they become ill or are required to care for a family worker. It is also to protect co-workers from infection. The reason employers should listen is that it is a classic case where the benefits mentioned above may also prevent significant losses to the employer’s operation.

Unions should speak with employers to deal with issues raised by COVID-19. Those discussions should be happening now.

The following is a preliminary checklist for that discussion:

• If the employer can’t be persuaded to make permanent changes to sick leave or other benefits, discuss having a temporary protocol that expires on a fixed date or event.
• One of the goals of the protocol should be to provide an incentive to employees with symptoms of influenza not to come to work.
• Discuss what medical information is required and at what stage. Who will pay for any medical certificates?
• If the collective agreement does not provide for benefits during a quarantine, then discuss what happens in the case of an employee who cannot report to work during quarantine.
• What measures are available to allow the person to work from home? What salary maintenance is available?
• What if the person is required to care for a person who is diagnosed with the virus? There are statutory rights to some days with pay in many jurisdictions, but none of them would provide enough available paid days for a virus to run its course. That is even more true if the caregiver becomes the patient at some point.
• These issues may present both health and safety issues and worker’s compensation issues in the workplace. An employer that deals inappropriately with the problem may find that there are consequences that go beyond the losses that go along with an infected workforce.
• If an employer is not responsive to any of the above, the issues may be raised in a health and safety committee.
• Does the protocol have to say that it is in addition to any provisions of the collective agreement?
• The employer should be explicit and clear about expectations for employees who have or are concerned they have symptoms of influenza. They should do so even if they believe there may be some individuals who may err on the side of staying home.
• There have been concerns about comments about people appearing to come from countries where there have been outbreaks. It is important to reinforce the importance of human rights in every workplace.

Most employers do some level of emergency preparedness planning. It just makes good sense. Planning is something you do before there is a problem.

It may be that there are no serious problems in the majority of workplaces. On the other hand, it is easy to see that, if there is a more serious problem, it will likely be too late to get appropriate measures in place.

Anyone tried to buy an N-95 mask recently?

In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.

The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.

It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”

This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.

As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”

The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.

Andrew Raven and Michael Fisher appeared for the Applicant.

On March 5, 2020, Anna Lichty and Megan Fultz represented Ravenlaw at the 2020 uOttawa Career Day at the Ottawa Conference and Event Centre.

Anna and Megan hosted four Community & Public Lawyering Roundtables, conducted a series of mock interviews with students interested in labour and employment law, and had the opportunity to meet and discuss our firm’s work with many first and second-year law students at a networking lunch. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at Ravenlaw, please contact us at studentrecruitment@ravenlaw.com.

On March 4, 2020, Morgan Rowe presented a workshop on human rights law, worker’s rights, and how these two sets of rights can be used to help individuals with disabilities challenge barriers in employment. The workshop was hosted by CUPE Local 2626.

Workers are typically thought of as either “employees” or “independent contractors”. Employers seek to classify their workforce as “contractors” to avoid paying for mandatory benefits under the Employment Standards Act (ESA), among other things, which only protects employees as defined under the ESA.

However, Canadian courts recognize an intermediate position where, although the worker is not an employee, they are still economically dependent on one contract. These so-called “dependent contractors” are entitled to reasonable notice upon termination of the contractual relationship.

In a recent decision, the Ontario Court of Appeal in Thurston v Ontario (Children’s Lawyer), 2019 ONCA 640, clarified the circumstances in which someone can be classified as a “dependent contractor”. The Court ruled that a dependent contractor relationship is one in which there is “a certain minimum economic dependency, which may be demonstrated by compete or near-complete exclusivity.”[1] This decision could be highly relevant for workers in the modern economy who depend on precarious contract work to make a living.

Background

Ms. Thurston was a sole practitioner lawyer who provided legal services to the Office of the Children’s Lawyer (“OCL”) for 13 years. Each year, the OCL had Ms. Thurston and its other lawyers sign a fixed-term contract, which made up about 40% of Ms. Thurston’s annual income. According to the contract, the OCL made no guarantee of the total value or volume of work that Ms. Thurston would receive, and the OCL could terminate the contract in any circumstances, without notice. When the OCL decided not to renew her contract in 2015, Ms. Thurston claimed that she was a dependent contractor, and therefore that she was entitled to 20 months’ notice of termination.

The Motion Judge’s Decision

When Ms. Thurston filed her lawsuit at the Superior Court claiming that she was a dependent contractor, the OCL brought a motion asking the judge to dismiss the case. The motion judge ruled against the employer. The motion judge noted that the relationship was continuous and permanent for 13 years and that Ms. Thurston was seen as an employee by the public. In addition, 40% of Ms. Thurston’s average billings from her legal practice came from OCL. The OCL appealed the motion judge’s decision to the Court of Appeal.

The Court of Appeal’s Decision

The Court of Appeal reversed the motion judge’s decision and dismissed Ms. Thurston’s case. The court reaffirmed that a worker claiming “dependent contractor” status must lead evidence showing “minimum economic dependency” on the contract. The court explained that a plaintiff demonstrates economic dependence with evidence of near-complete exclusivity:

In distinguishing dependent from independent contractors, McKee made clear that exclusivity of service provision, and therefore of income, is key. As the court put it, “exclusivity is determinative, as it demonstrates economic dependence”; exclusivity, the court said, is a “hallmark” of the dependent contractor category: McKee, at para. 34. In Keenan, at para. 25, this court emphasized that exclusivity was “integrally tied to the question of economic dependency” and that the determination of exclusivity requires consideration of the full history of the relationship in question.[2]

The court based its conclusion on other court decisions that considered this issue and identified near-complete exclusivity as the key factor. In some cases, courts have decided that someone can be a dependent contractor if “substantially more than a majority” of the dependent contractor’s income was earned through one contract.

In Ms. Thurston’s case, the court ruled that she failed to establish the required degree of exclusivity which would demonstrate her economic dependence on the OCL. Ms. Thurston maintained an independent legal practice throughout her time with the OCL, and her work with the OCL only averaged 39.9% of her annual billings – hardly exclusive service. The court confirmed that “near-exclusivity necessarily requires substantially more than 50% of billings.”[3] While the OCL was certainly an important client for her, the Court of Appeal found that the motion judge’s decision failed to appropriately consider the facts and apply the exclusivity test, and for that reason, the motion judge’s decision was unreasonable in the court’s opinion.

Discussion

The Court of Appeal’s decision is a step backwards for dependent contractors who rely on one contracting party for a large portion of their income but would not meet the Court’s onerous “near-complete exclusivity” threshold. Although the decision simply reaffirmed what the Court of Appeal has said in previous decisions (see for example McKee v Reid’s Heritage Homes Ltd., 2009 ONCA 916; Keenan v Canac Kitchens Ltd., 2016 ONCA 79), nevertheless, the Court’s guidance in this case on what constitutes a dependent contractor is useful to those who work through contracting parties. This case is the latest in a long line of decisions confirming that in classifying a work relationship, courts will focus on the substance of the relationship. For workers whose income depends on precarious contract relationships, this means that an employer cannot hide behind the “independent contractor” label if the facts point to a different conclusion.

If you have any questions regarding your employment situation, consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP. 

[1] Thurston v. Ontario (Children’s Lawyer), 2019 ONCA 640  at para 23.

[2] Thurston, supra, at para 25.

[3] Thurston, supra at para 30.

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

By Geoff Dunlop and Raphaёlle Laframboise-Carignan

If you have recently started a new job, you may be surprised to learn that your employer’s insurance plan might not cover long-term disability entitlement for people with pre-existing medical conditions. You may be even more surprised to learn that human rights legislation allows for an employer to exclude some people with pre-existing conditions from disability insurance plans.

Overview

Canada has both federal and provincial human rights legislation prohibiting discrimination on the basis of protected grounds, such as disability. The federal legislation, the Canadian Human Rights Act, applies to federally regulated employers, such as airlines and banks. The Ontario Human Rights Code applies to provincially regulated employers. You can learn more about how human rights legislation applies to federal and provincial employees here.

Both the federal and provincial statutes outline situations in which it is not discriminatory for an employer’s disability insurance plan to exclude people with pre-existing medical conditions. Under the federal legislation, plans can exclude a person with a pre-existing condition, who has received medical treatment for that condition, for the first year the person is insured. Under Ontario’s legislation, a plan can exclude a person with a pre-existing condition if it substantially increases the risk for the insurer. Pre-existing conditions are often defined broadly, so almost any medical condition for which you receive treatment may be defined as a pre-existing condition.

Federal Law

Under a regulation of the Canadian Human Rights Act, it is not discriminatory if an employer’s disability income insurance plan does not pay benefits to an employee who, during the first year an employee is insured under the plan, becomes disabled as a result of a pre-existing condition. An injury, accident or sickness that started before the employee became insured can qualify as a pre-existing condition, so long as the employee received medical care, treatment or services, drug therapy or prescribed medicine during the year before becoming insured under the plan.

Ontario Law

Under the Ontario Human Rights Code, it is not discriminatory for an employer’s disability insurance plan to make a reasonable and bona fide exclusion because of a pre-existing disability that substantially increases the risk to the insurer. Unlike the federal statute, Ontario’s statute does not contain any time limit on the exclusion. However, the Ontario Human Rights Code does outline that if an employee is excluded from a group insurance contract because of a disability, the employer must pay the employee compensation equivalent to what the employer would contribute to the insurance contract for an employee without a disability.

Potential Challenges to the Human Rights Legislation

As of July 2019, no federal courts or tribunals have addressed the pre-existing condition exclusion in disability insurance plans. At that time, in Ontario, only one case, Ontario (Human Rights Comm.) v. North American Life Assurance Co., had assessed the exclusion for pre-existing conditions. In that case, the Ontario Human Rights Commission argued that an insurance plan’s pre-existing condition exclusion clause was discriminatory and requested that the court declare it illegal. However, the Ontario Supreme Court upheld the Board of Inquiry’s finding that the insurance plan’s exclusion clause related to a substantial increase in risk because the complainant had a pre-existing disability. Therefore, the exclusion clause was reasonable and bona fide. The Court found that the Human Rights Code provision relating to pre-existing disability exclusions must be read in the context of the insurance industry, which is a for-profit industry. Therefore, the Court determined that it is not discriminatory for a disability insurance plan to exclude pre-existing disabilities that considerably increase the possibility of future insurance financial liability, so long as the exclusion is reasonable in the insurance industry and made in good faith.

Recently, in Talos v. Grand Erie District School Board, the Human Rights Tribunal of Ontario declared that the provision of Ontario’s Human Rights Code that allowed for employee benefits to be cut off at age 65 was unconstitutional. Perhaps a similar challenge to the provisions allowing people with pre-existing conditions to be excluded from employer disability insurance plans may one day be successful.

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

On December 12, 2019, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to portions of the RCMP pension plan, which have been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.

RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to argue that the pension law discriminates against women and other parents on the grounds of sex and family status. Particularly, PSAC intervened to argue that the RCMP’s treatment of reduced hours of work for childcare worsened the negative impacts that women already experience under traditional pension designs, given their disproportionate share of parental responsibilities. PSAC also argued that the RCMP pension plan failed to protect the ability of employees to make meaningful personal choice in a core area of their lives.

Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of PSAC.

Ravenlaw Holiday Hours

Please note our office will be closed from December 23, 2019 until January 1, 2020. We will reopen for regular business hours on Thursday, January 2, 2020 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

Employees have the right to work in a healthy and safe workplace and, as such, employers have the obligation to take all reasonable precautions to protect the health and safety of employees.  If an employee has reason to believe that there is a dangerous condition in the workplace or that their duties are likely to present a danger to their health and safety or the health and safety of their co-workers, the employee has the right to refuse work.

Employees who consider their work unsafe due to a confirmed (or presumptive) case of COVID-19 in the workplace, or who have concerns about the risk of potential exposure to COVID-19 from customers or clients, may be able to refuse to attend work or perform certain duties.  Whether or not the work refusal is deemed reasonable will depend on individual circumstances of the employee and the workplace.  Employees must report the refusal to their supervisor or employer who then have the obligation to investigate and, if necessary, adopt measures to eliminate or reduce the risk of potential exposure.   During this first stage of a work refusal, an employee is entitled to be paid at the appropriate rate.  If the issue is not resolved, and the worker still has reasonable grounds to believe the work is unsafe, the worker or the employer must call the Ministry of Labour.  During this second stage, an investigator will be assigned by the Ministry to investigate the work refusal and render a decision in writing.

An employer may not dismiss, discipline, suspend, or impose any penalty or threaten to take any of these actions on a worker who has exercised the right to refuse dangerous or unsafe work.  An employee who believes the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (or the relevant federal/provincial Board) or, if working in a unionized workplace, may ask the union to file a grievance under the collective agreement. Make sure that you are aware of the timelines to make these complaints.

The right to refuse work is limited if the danger or working condition is inherent in the work performed by the worker or if the refusal of work would directly endanger the life, health, or safety of another person.  The right to refuse work is therefore limited for police officers, firefighters, workers employed in the operation of a correctional institution, health care workers and persons employed in workplaces like hospitals, nursing homes, sanatoriums, homes for the aged, psychiatric institutions, mental health centres or rehabilitation facilities, residential group homes for persons with behavioral or emotional problems or a physical, mental or developmental disability, ambulance services, first aid clinics, licensed laboratories—or in any laundry, food service, power plant or technical service used by one of the above). Employees in these occupations may still raise issues relating to unsafe working conditions with their supervisors or employers in order to have their concerns addressed and reduce the risk of exposure to COVID-19, though they may not be able to refuse to work.

If you can, you should speak to an employment lawyer to understand your rights as they will be very fact-specific to your circumstances.

It is important to keep up to date with federal, provincial, and municipal government instructions on how to act during this COVID-19 state of emergency. Federal and provincial governments are issuing updates daily – sometimes several times a day.

[Note: this information applies to non-unionized employees only. Unionized employees should consult their bargaining agent. This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]