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March 17, 2020

COVID-19 FAQs for Employers

Authors Hendrik Nieuwland and Brandin O'Connor

  1. What do I do if an employee, or his/her family member, is diagnosed with COVID-19 or was exposed to someone with COVID-19?

    You must tell the employee not to come to work for the duration of the 14-day self-quarantine period.

  2. Can I ask for a medical note from an employee who says they cannot come to work because of COVID-19?

    While an employer is typically allowed to ask for a medical note to justify an employee’s absence from work, on March 16, 2020 the Ontario Government announced it would pass legislation to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures, without the need to provide a medical note.

  3. Can an employee refuse to come to work if they believe a co-worker has COVID-19 or was exposed to COVID-19?

    This is called a “work refusal” under Occupational Health and Safety law.  The employee must first report the alleged unsafe workplace to their supervisor, which triggers the employer’s duty to investigate.  If an employee has reasonable grounds to believe the danger remains, the employee can refuse to work, and the employer must notify the Ministry of Labour. 

    If a co-worker is diagnosed with COVID-19, or is confirmed to have had close contact with someone diagnosed with COVID-19, and this co-worker was recently in the workplace, it may be reasonable for an employee to refuse to come to the workplace.

    At this point in time, with few known cases of community transmission of COVID-19 in Ontario (i.e. infections unrelated to travel), it would not be reasonable for an employee to refuse to come to work simply because a co-worker has cold or flu symptoms.  However, this may change once community transmission of COVID-19 becomes widespread in Ontario.

    Finally, an employee cannot simply refuse to come to work based on general anxiety, absent some further direction from government. 

  4. If an employee is required to self-quarantine, but is not sick, can I have them work from home?

    Yes, where feasible you can require an employee to engage in work from home.

  5. If an employee is required to self-quarantine, but cannot work from home, do I need to pay them?

    If an employee is away from work because they are sick with COVID-19, there is no obligation on an employer to pay them, unless there is a contractual right to receive paid sick time or short term disability benefits.

    An employee who is away from work because they are sick with COVID-19 can apply for EI sickness benefits, and the Federal Government has recently waived the one-week waiting period.

    If an employee is away from work because they were exposed to COVID-19 (by travel or a family member), is not sick, but is unable to work from home, refusing to pay the employee could be considered a constructive dismissal, based on legal precedent.  However, the unprecedented consequences of the pandemic, combined with an employer’s obligation to take all reasonable measures to protect the health and safety of employees in the workplace, may result in employers having the legal right to require employees to stay home on unpaid leave without this amounting to a termination.

  6. What are my options if an employee is working from home, but they have children whose daycares are now closed?

    While an employer generally has the right to ask an employee to work from home without interruption from childcare obligations, an employer does have a duty under the Human Rights Code to accommodate an employee with childcare needs. 

    An employee whose children’s daycare has been closed must look for alternate childcare, and inform the employer if they cannot find it.  An employer can assist by trying to locate alternative childcare for the employee, but that is unlikely to be successful at this time. 

    Therefore, an employer is required to accommodate an employee working from home who also must look after their children.  This will inevitably require the employer to be flexible with the number of hours an employee will work each day.  However, if an employee is accommodated in this fashion, they are only entitled to be paid for the hours they actually work.  In these circumstances, an employee may ask to use vacation or sick time to make up the difference in their pay, and an employer should be flexible in allowing for such arrangements. 

  7. If an employee is absent from work because they were sick with COVID-19, can I request evidence they are free from the illness before they return to work?

    Presently, an employer is entitled to receive reasonable information confirming that an employee who was sick with COVID-19 has satisfied the 14-day self quarantine period before allowing the employee to return to work.  However, this may change depending on the content of the job-protected leave legislation the Ontario Government announced on March 16, 2020.

  8. My business has suffered as a result of the economic slowdown caused by COVID-19.Can I layoff my employees?

In a unionized workplace, an employer typically can rely on layoff provisions in the collective agreement.

The rules are different in a non-union workplace.  An employee can only be placed on a temporary unpaid layoff in accordance with the applicable employment standards legislation if their contract of employment expressly gives the employer this right.  If the contract is silent about layoffs, placing an employee on an unpaid layoff is a constructive dismissal based on current legal precedent.  However, as noted above, the unprecedented consequences of the pandemic may lead to a different result if the matter were litigated. Perhaps more importantly, and as a practical matter, employees may simply accept the layoff and apply for employment insurance while they await recall, rather than resign and allege constructive dismissal.

If you place an employee on a temporary layoff and they do not have benefits, or you do not continue their benefits coverage, the layoff can last up to 13 weeks in any 20 week period in Ontario.  If you continue benefits coverage, the layoff can last up to 35 weeks in any 52 week period in Ontario.  If the layoff exceeds these limits, the employee is deemed to be terminated.  The terms and conditions of layoff vary by province.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.


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