In a recent decision, the Federal Public Sector Labour Relations and Employment Board found that an employer’s actions, which made it more difficult for an employee to participate in a health and safety complaint hearing, were reprisals and in violation of the Canada Labour Code.

The employee had been summonsed to attend as a witness for a two-day hearing before the Occupational Health and Safety Tribunal. Because he worked an afternoon shift, the employee requested a shift change so that he would not have to return to work after the hearing. The employer, Canada Border Services Agency, denied the request and ordered the employee to return to the workplace immediately after the end of the hearing. The employee followed this direction but received a one-day suspension because he did not arrive in the workplace by 5:25PM, as the employer preferred.

The Board concluded that both the refusal to allow the employee a shift change and the suspension were reprisals for the employee’s participation in the health and safety hearing. These actions therefore violated the provisions of the Canada Labour Code which protect employees from being penalized for testifying in a proceeding under the Code.

Specifically, the Board found that the decision to deny the shift change was inconsistent with the employer’s practice for other employees who were allowed shift changes to attend hearings. It also held that the imposition of a 5:25PM return-to-work time was arbitrary and in bad faith as the employee had no control over when the hearing would end. Given the unreasonableness of the employer’s actions in both circumstances, the Board concluded that it was not convinced that the employee’s participation in a health and safety hearing played no part in the employer’s decisions to penalize him.

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

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.]

You are disabled and cannot work.  Your workplace provides Long Term Disability (LTD) coverage as part of your health benefits package.  If you are unable to work for health reasons, the LTD insurance benefits coverage should provide you with income protection while you are unable to work for reasons related to your illness or disability.  You apply for LTD benefits but the insurance company denies your claim.  What can you do?

1. Do not give up!

First and foremost, do not give up.  A high percentage of LTD claims are denied for a variety of reasons.  Insurance companies save money when individuals simply accept the denial or do not have the resources to contest their decision.  Most LTD insurance policies provide for an internal appeal process which must be started within a specific time frame, usually 60 days.  An individual may also choose to proceed immediately to litigation.  We recommend consulting with legal counsel to discuss your available options.

2. Internal Appeal

As stated above, most LTD insurance policies provide an internal appeal process where individuals can contest the insurance company’s denial of their claim.  It is important to remember that because this is an internal process, the insurance company is reviewing its own decision. It is therefore unsurprising that a significant amount of appeals are denied.  We often do not recommend proceeding with the internal appeal process unless you have new, additional medical information to provide to the insurance company during the appeal process.  A repetition or reframing of information already provided is unlikely to be successful in convincing the insurance company to reverse its initial decision.

Federal public servants have access to an additional step in the appeal process.  Depending on whether they are covered by the Public Service Management Insurance Plan (for non-unionized employees) or by the Disability Insurance Plan (for unionized employees) individuals may request an independent review of their case.  The Board of Trustees of the PSMIP or the DI Plan Board of Management then have the ability to make recommendations to the insurance company regarding the case. The insurance companies responsible for these plans most often accept the recommendations following these reviews.  If you are unionized, contact your union to see if they are able to assist.  If you are not unionized or if your union is unable to assist, we recommend you contact experienced legal counsel for advice.

3. Litigation

Your best option to successfully challenge the denial of your LTD claim and enforce your rights may be to sue the insurance company in court. This can be done immediately after the initial denial or following an unsuccessful appeal. Filing a Statement of Claim against an insurance company starts a legal process where various steps are required to be taken by both parties prior to trial.

While proceeding with litigation may be a daunting process, it is important to know that the litigation process is designed to encourage the parties to settle the case.  For example, in Ontario, mediation is mandatory. Mediation is a process for resolving disputes where the parties meet with an independent mediator who assists the parties in reaching an agreement. It is our experience that many cases settle at mediation.  However, if a mutually satisfactory agreement cannot be reached, the case proceeds to the next step of the process.  There are further opportunities to discuss settlement throughout the litigation process, up until trial.

4. The clock is ticking…

Regardless of how you decide to challenge the insurance company’s denial of your LTD benefits, it is very important to keep track of your timelines.  Proceeding through the internal appeal process does not necessarily stop the clock for starting a legal action in court.  Generally, you have two (2) years from the initial denial of your LTD claim to pursue legal action though there are exceptions to this general rule.  It is important to review the LTD insurance policy and applicable provincial limitation period to understand the time limits for your particular case.

If your LTD benefits are denied, we recommend that you seek advice from competent experienced lawyers as soon as possible following your initial denial in order to be properly advised of your rights and the options available to you to obtain a satisfactory resolution.

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.]

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.

This week, the Government has started accepting applications from employers for the Canada Emergency Wage Subsidy (CEWS), part of the Government’s economic response to the COVID-19 pandemic crisis. This new benefit is unprecedented in scope and is likely to be well received by many employers and employees. However, the design of this benefit arguably leaves too much power in the hands of employers.

What is the CEWS?

The CEWS is a wage subsidy intended to help employers that are struggling due to COVID-19, allowing them to recall employees that have been laid off, and to avoid future layoffs. Eligible employers will receive a subsidy for up to 12 weeks between March 15 and June 6, provided they can show the required reduction in revenue for that period. The Government has not imposed any size limit on eligible employers and has extended the benefit to all types of businesses, as well as not-for-profit organizations and charities. Only public institutions, such as schools and hospitals, are excluded.

How much does the subsidy cover?

The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. There are special calculations for employees whose pay has been reduced since before the crisis, and for non-arm’s length employees.

Employees who have been laid off can become eligible retroactively for the CEWS if the employer rehires them. However, if those employees have received the Canada Emergency Response Benefit (CERB), and they will earn more than $1000 per month as a result of being rehired, they will have to repay the CERB.

Does the CEWS give too much power to employers?

This program is new and therefore may be revised and adjusted in response to public criticism, similar to the CERB. The Government may want to consider some of the ways in which this program’s design places too much power in the hands of employers.

No obligation on employers to pay remaining 25% of wages

The Government is not requiring employers to pay the remaining 25% of employees’ wages as a condition of eligibility for the CEWS. The Government has stated publicly that it “expects” employers to make best efforts to pay the remaining salary amounts, but it is unclear whether there will be any mechanism to enforce that expectation. As a result, there is a concern that many employers will recall employees at only 75% of their previous pay rate, or even potentially reduce the pay of existing employees. This program should obviously not create an incentive for employers to pay their workers less.

Employers decide the level of government benefit for workers

The CEWS (up to $847 per week) is a far more valuable benefit than the CERB ($500 per week). A worker who has been laid off due to COVID-19 is only eligible for the CERB, but that worker’s employer could choose to rehire them solely for the purposes of accessing the CEWS, thereby granting that worker access to a significantly larger benefit.

This program therefore gives a huge amount of power to employers to basically decide how much financial relief their workers will receive during this crisis. One way to fix this flaw is to increase the value of the CERB to make it equivalent to the CEWS.

Will the CEWS strengthen a claim of constructive dismissal?

While the CEWS appears to place workers at the mercy of their employers in many respects, one way in which it may hand some power back to workers is in claims for constructive dismissal.

Many employment law experts have questioned how courts will consider claims of constructive dismissal in these extraordinary circumstances. Some argue that the COVID-19 crisis may justify greater changes to the employment relationship than have previously been accepted, on the theory that a reasonable person in the employee’s position would not consider the change to amount to a dismissal in this unique context.

The CEWS offers significant relief to employers in meeting payroll obligations, and so it may play a role in the constructive dismissal analysis. A reasonable employee may, for example, consider themselves constructively dismissed if they are laid off or have their wages reduced, if the employer cannot prove that these changes were necessary despite the presence of the CEWS benefit.

These questions, unfortunately, will not be answered by the courts for some time. Therefore, it is important for employees to obtain legal advice before claiming constructive dismissal, to fully understand the risks and consequences.

[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 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.

Our law firm pauses today to recognize the National Day of Mourning, a day to honour those who have been killed, injured, or made ill as a result of their work. Every worker has the right to a safe and healthy workplace. One workplace death, injury, or illness is one too many.

These extraordinary times remind us of the importance of a safe and healthy workplace. Sadly, many frontline workers around the world have died or become ill because of exposure to the coronavirus in their work. All of us at RavenLaw would like to express our incredible gratitude to the workers performing essential work during the COVID-19 pandemic. We will continue to fight on their behalf for adequate health and safety protections.

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.