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?

What do you do when your arbitration is coming up but no one can meet face to face? The answer, for a number of arbitrators, is that you find another way to hold the hearing.

There are many reasons a party may not want to go ahead with a hearing.  In some cases, a party can ask to postpone the date. Examples include the illness of a representative or of an important witness.  It is important to remember, though, that no one has a right to an adjournment, or a veto over going ahead with a hearing.  The same is true about the way the hearing is held.  Traditionally, everyone meets in the same physical location and the evidence is presented.  Unless there is something in the collective agreement though, it’s a tradition, not a legal requirement.

It is important to remember that the Arbitrator controls the process for getting the grievance resolved.  That means deciding when the hearing is held and how it is held.

Arbitrators Goodfellow, Johnston and Luborsky, in three separate and very recent decisions, refused requests for adjournments in circumstances where the parties could not be in the same location. As an example, arbitrator Goodfellow said in a Toronto Transit Commission case that:

I am, quite simply, not persuaded that there is any risk to the TTC of it not being able to put its best foot forward, factually, or of me being deprived of the most truthful and reliable evidence, legally, to fully and fairly adjudicate the issues in dispute, simply because Mr. Grimaldi (and, possibly, one other witness) will testify remotely with Ms. Rogers having testified in-person. Finally, to be clear, I am completely unpersuaded that any Zoom-related “privacy issues” have any meaningful role to play in the process.

It is not enough to say that there may be credibility issues, so the case must proceed in person.  Arbitrators have a wide range of things they can do to manage any hearing – including electronic hearings.  It is true that technology is not perfect and there will inevitably be some glitches.  On the other hand, the same could be said for many in-person arbitrations.

There will still be situations where an arbitrator will adjourn an arbitration and reschedule for a later date.  Arbitrator Misra did that when Mount Sinai Hospital asked to postpone the hearing.  In that case, though, she was dealing with a pay issue that had remained unresolved for two years and the hospital was scrambling to find the resources to deal directly with the consequences of COVID-19 on patients. The different result in that situation was understandable.

As with any other request, most arbitrators will balance various factors.  One of the most important is the significant interest the parties have in having cases decided quickly. Against that, the party asking to put off a hearing (usually the employer) will have to show real prejudice that would be caused by going ahead and using a new technology.  The arbitrator will consider real  difficulties that are caused by proceeding with a case, but an increase in the work required to prepare and present evidence will not likely be enough.

Parties will have to decide whether they want to go forward with their cases, and they may have legitimate reasons to agree to postpone.  On the other hand, as we navigate a new and challenging labour relations reality, remember that arbitrators may be sympathetic when someone says that the hearing must go on.

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.

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.]

RavenLaw is proud to welcome two new lawyers to our team: Sean McGee and Alison McEwen.

Sean practises in the areas of Labour Law, Employment Law, and Litigation. He represents unions across Canada, with a focus on Ottawa, Eastern Ontario, and Toronto. For more information about Sean, visit: https://ravenlaw.com/people/sean-mcgee.

Alison practices in the areas of Labour Law, Employment Law, and Litigation. She also represents unions across Canada, with a focus on Ottawa and Eastern Ontario. For more information about Alison, visit: https://ravenlaw.com/people/alison-mcewen.

A couple can be living in a conjugal relationship even if they are living in different cities, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The Board found that the Department of Citizenship and Immigration was wrong to deny an Ottawa-based employee’s request for spousal relocation leave to join his partner in Vancouver, because the couple had not lived under the same roof for at least a year. The couple had lived together briefly in Ottawa and intended to relocate to Vancouver but, for personal and financial reasons, were unable to move at the same time.

The department’s collective agreement with the Public Service Alliance of Canada grants an employee leave to accommodate the relocation of a spouse or “common-law partner,” defined as a person “living in a conjugal relationship” with an employee continuously for at least a year. There is no requirement in the agreement that the couple cohabit for that entire period, the Board pointed out, only that the conjugal relationship has lasted more than one year. The Board concluded that an individualized assessment based on relevant factors, of which cohabitation is just one, is required to determine if a couple is, in fact, living in a conjugal relationship.

In this case, the Board was satisfied that, when the employee requested spousal relocation leave, the couple had been living in a conjugal relationship continuously for at least a year, even though they were living apart. The couple intended to have a common residence but were living separately mainly for financial reasons. Their relationship otherwise had the hallmarks of a common-law partnership. The factors the Board considered included the exclusivity of the couple’s relationship, the emotional and psychological support they provided to each other, their constant communication and, at considerable cost, their frequent visits across the country to see each other.

The Public Service Alliance of Canada was represented by Michael Fisher.

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.

The Ontario Government announced its intention to expand the closure of all “non-essential” businesses on April 3, 2020 in response to the COVID-19 pandemic. The announcement included plans to extend the shutdown to April 17, 2020 and to include new workplaces on the list of businesses that must be temporarily closed.

But despite the media attention to this announcement, details of what exactly the shutdown means for employees have been few and far between, leaving many questions unanswered. For example, what businesses can stay open? And when can an employee be required to go into a closed workplace during the shutdown?

The starting point for understanding how the COVID-19 shutdown affects employees lies in the regulations that the Ontario Government has passed as part of its declaration of a state of emergency. Since March 17, 2020, the Government has passed a series of regulations under the Emergency Management and Civil Protection Act which have closed different kinds of Ontario business and workplaces for different periods of time.

The main regulation enforcing the current shutdown of non-essential businesses is O. Reg. 82/20, or the “Closure of Places of Non-Essential Business” regulation. It provides that all businesses which are not listed as essential in the regulation must be closed from 11:59PM on March 24, 2020 and for as long as regulations require.

1. Reg. 82/20 listed a number of types of businesses that are considered essential and which are allowed to remain open and operate as normal. This included certain kinds of retail business, such as grocery stores and gas stations; restaurants but only for the purposes of takeaway and delivery; support and maintenance services for buildings; IT and telecommunications companies; agricultural businesses, and others.

The most recent planned update to the “essential” business list will remove certain categories of business that were originally considered essential, forcing them to now close down. Workplaces which now must close include cannabis stores and producers; veterinary service providers, except those providing urgent care; automobile rental and leasing businesses; and office, hardware, and pet supply businesses. In addition, only critical construction projects are allowed to continue during the shutdown.

Any business which does not fall into one of the categories listed in O. Reg. 82/20 must generally close and remain closed until the shutdown is over. But O. Reg. 82/20 does allow for a few, narrow exceptions to this rule, including:

• A business does not need to shut down any work that can be done remotely, including shipping goods through the mail, by delivery, or for pick-up
• Employees can be required to go into a closed workplace to perform inspections, maintenance, or repairs
• Employee can still be required to go to a closed workplace in order to provide security services
• Employees can be required to temporarily attend a closed workplace to attend to “critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely”
• Employees can be required to temporarily attend a closed workplace to access materials, goods or supplies necessary for the business to operate remotely

These rules about when employees can still be required to go in to work during the shutdown can be trumped by other employee rights, however. For instance, in some circumstances, employees may have a right to refuse unsafe work due to COVID-19, depending on their individual situation, regardless of whether the workplace is considered “essential” or not.

Where employees are required to stay home because their workplace is closed by the shutdown, they may have access to certain lay-off rights, as well as to new benefit packages that both the provincial and federal government are introducing to address the impact of the pandemic. Employees looking for information on the legal options available to them because of the shutdown should contact an employment lawyer to discuss their specific circumstances.

Currently, the planned end date for the Ontario shutdown is April 17, 2020, but the Government has a lot of leeway to change this plan as long as the provincial state of emergency continues. The shutdown can be lengthened or shortened, and new categories of “essential businesses” can be added at any time to respond to the rapidly changing circumstances in the province.

[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.]

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.

The Government of Canada has started accepting applications for the Canada Emergency Response Benefit (CERB) this week, as part of its response to the COVID-19 pandemic crisis. While this benefit is going to provide crucial support to many who have lost income due to the pandemic, there are lingering questions about who has been excluded from the benefit, and whether the Government will provide further support to those who have been left out.

What is the CERB?

The CERB is a benefit to replace income lost due to the COVID-19 pandemic. It is a flat, taxable amount for all eligible claimants: $2,000 for every four weeks you are eligible, up to a maximum of 16 weeks, between March 15 (retroactive) and October 3, 2020.

Who is eligible for the CERB?

To qualify for the CERB, you must be a resident of Canada of at least 15 years of age, and must:

• Have had at least $5,000 in income from work (employment or self-employment), EI maternity or parental benefits, or Quebec’s parental benefits program QPIP in the last year; AND
• Have had NO income from employment, self-employment, any EI or QPIP benefit for at least 14 days in a row.

Who is NOT eligible for the CERB?

There are unfortunately many people excluded from this benefit, despite also being significantly impacted by the COVID-19 pandemic.

Workers with reduced hours/income

Many workers have not lost all of their income due to the pandemic, but have seen a dramatic drop in their hours of work. Since they still have some level of income, they are ineligible for the CERB—this is true even if their income from employment is less than the value of the CERB.

Students seeking summer employment

Many students who were counting on employment during the summer months will not be able to find jobs due to the pandemic. However, because they did not lose a current source of income, they will not qualify for CERB. Similarly, students who are about to graduate and were about to enter the job market will not have access to this benefit.

Seasonal and unemployed workers

Like students, many workers have seasonal jobs, and therefore have not lost current income. Instead, they have lost or are likely to lose out on expected employment in the coming months. These workers do not fit the criteria for the CERB.

And, of course, any workers who are currently unemployed will not qualify for the CERB, and may be at or near the end of their EI benefits with no reasonable prospect of future employment.

More help may be on the way

The Government has received numerous inquiries about the gaps in the eligibility for the CERB, and has assured Canadians that additional help will be coming for these groups. Prime Minister Trudeau has publicly stated that the Government is exploring ways to help everyone in Canada that needs it, and should have more to say in the coming days about additional supports. He has specifically referred to forthcoming help for students, and to the possibility of extending the CERB to cover workers with reduced hours.

Updated information about the CERB and how to apply can be found here.

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