Can I be laid off because of the Coronavirus pandemic?

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.