Now that we’re weeks into the pandemic and government-mandated shutdown of all non-essential businesses, we understand both employers and employees may have more questions than ever.

• When will this end?
• Will my business survive?
• What options are available to me?
• What are my rights and obligations?
• Am I safe at work?

It is vital in these uncertain times for business leaders to understand their legal obligations and the various options available to them to support their staff while they may be modifying operations. It is also important for employees to understand their legal rights and responsibilities in the workplace.

This is not an exhaustive list, but here are some of the most pressing legal considerations for Ontario regulated employers and employees to keep top of mind:

Occupational Health and Safety Act: Employer Obligations

Under the Occupational Health and Safety Act, employers are required to take every precaution that is reasonable in the circumstances to provide a safe and healthy workplace. This is no small feat when confronting a pandemic. It is recommended employers be proactive and consider implementing steps including but not limited to:

• Requiring employees to self-report illness, COVID-19 exposure, COVID-19 testing, and/or a diagnosis of COVID-19.
• Encouraging proper hygiene practices and ensuring that staff have adequate access to soap, water, hand sanitizer, sanitizing wipes, etc.
• If the employer becomes aware that an employee is being tested for or has been diagnosed with COVID-19, the employer should be mindful of the employee’s right to privacy. The employer should only disclose such information that is reasonably necessary to appropriately protect its employees. Disclosure should be made only on a need-to-know basis. Respect the privacy and dignity of the individual at all times.
• Implementing processes and practices for physical distancing at work and/or remote work locations.
• Screening employees to assess risk such as using a questionnaire regarding recent travel and interactions and/or instituting temperature screening and/or reporting measures.

Occupational Health and Safety Act: Employee Rights & Responsibilities

It is each employee’s responsibility to abide by their employer’s policies and requirements concerning hygiene, social distancing, self-reporting of symptoms, testing, diagnosis, and reporting of any unsafe work conditions.

Under the Occupational Health and Safety Act, an employee has the right to refuse unsafe work. However, an employee must have a reasonable basis on which to do so. That is, there must be a specific, clear, and present risk that is likely to endanger an employee’s health or that of another worker. While what is “reasonable” will depend on many factors including the nature of the workplace and the individual circumstances of the employee, general worry and fear about contracting the virus will not likely meet this legal threshold.

Ontario Employment Standards Act: Leaves and Temporary Lay Offs

In responding to the slowdown in business and its impact on workflow, employers and employees that fall under Ontario jurisdiction also have options under Ontario’s Employment Standards Act. These include:

• Exercising the right to temporarily lay off employees for 13 to 35 weeks by meeting the legislative requirements and subject to the constructive dismissal considerations outlined below. Employees can apply for Employment Insurance benefits and should do so immediately after being temporarily or permanently laid off.
• Scheduling mandatory vacation to allow employees to be off with pay.
• Providing unpaid emergency leave at the employee’s choice; in this case, a medical certificate is not required.
• Carrying out terminations of employment with appropriate payments. Consider any common law requirements if you don’t have enforceable employment agreements restricting common law liability.

Human Rights Code: Accommodation of Disability and Family Status Obligations

To ensure compliance with under the Human Rights Code (Ontario) (“Code”), a COVID-19 infection should be considered a disability and the requirement to take care of children and elderly parents should be considered a personal obligation related to family status. Also, keep in mind that mental distress arising from the pandemic, financial pressures, family obligations, childcare needs, etc., may create circumstances where an employee will meet the definition of disability as well under the Code.

Both employers and employees must work together to effectively communicate and understand the employee’s restrictions and come up with appropriate modifications and flexibility to accommodate their needs related to disability and/or family status.

If you are not sure how to proceed with making or responding to a request for accommodation in the workplace, please seek counsel to understand the obligations and rights under the applicable human rights legislation as this situation continues to unfold.

The Likelihood of Constructive Dismissal Claims

Constructive dismissal occurs when an employer unilaterally makes material changes to the employee’s terms of employment or creates a hostile work environment and, essentially, forces the employee to end the employment relationship. With COVID-19 is an unprecedented set of circumstances.

While business needs are changing, and our definitions of “essential” and “nonessential” are evolving, what we do know for certain is:

• Employers can reduce hours or lay off an employee if the employment agreements allows, or the employee consents.
• Employers may implement a temporary lay-off if the employment agreement allows, or the employee consents.

Without the contractual right for the employer to make these changes unilaterally, employees generally have grounds to push back and assert that such changes result in a constructive dismissal. However in these unprecedented times it remains to be seen if employees will find an effective remedy under a constructive dismissal claim.

Furthermore, the remedy in a constructive dismissal case usually involves an exit from employment. In these uncertain times, permanent job loss may not be a desirable outcome for an employee and so, even though in principle this concept may be in play, practically speaking, it may not be beneficial for employees or employers to enter into conversations around constructive dismissal.

This does not mean employers can become lax in terms of their legal responsibilities and obligations to their employees or that employees must put themselves at unnecessary risk in harmful conditions. However, constructive dismissal is unlikely to be an appropriate avenue for most folks right now.

Recommendations for Employers:

Proactive Employers should:

• Review, and update if necessary, your current health and safety policies to more effectively manage self-reporting and response.
• Cross-train employees so they can cover for each other.
• Prepare questionnaires and protocols that allow you to assess the health and wellness of your workforce.
• Communicate with your staff. You cannot over communicate at this point. Be sure to offer reassurance and information, rather than gossip and speculation. This serves no purpose other than to create even more anxiety and fear.
• Prepare to respond to situations on a case by case basis.

Recommendations for Employees

As mentioned, it is vital that you comply with your employers’ protocols for hygiene, distancing, self-reporting, etc. Please report situations or conditions that are unsafe, and if you are sick or have been exposed, do not come in to work. We understand this is a hardship for many people, but isolation is critical in curbing the spread of COVID-19. If you are unable to work or are laid off, file for EI benefits as soon as you can.

Understand your rights under the Occupational Health and Safety Act, the Employment Standards Act, and the Human Rights Code.

We Are Still Here

These days, it is easy to become overwhelmed at the amount of information – and the speed at which the situation evolves. Answers seem few and far between. What we can offer, though, is reliable, sound legal advice to help you navigate this period as an employer or employee. We remain available by email, phone, and video conference. Please reach out if you need assistance.