Your Guide to COVID 19 & Employment Rights in Canada

by | Nov 30, 2021 | COVID | 0 comments

The COVID-19  pandemic changed the course of history almost overnight. In a matter of days, governments were scrambling to figure out how to stop the spread and keep people safe, and business owners were left wondering how they were going to survive.

With these changes, the federal and provincial governments did their best to provide support for workers, and regulations and laws changed almost seemingly overnight. Oftentimes, this made the averge worker’s rights hard to keep track of.

As an employee during COVID-19, either working remotely, in person, or laid off, it is essential that you know what your rights are. And if they’ve been violated, you need a reputable Toronto employment lawyer with the skill and experience to get you everything you’re entitled to.

Use our guide to better understand current employment rights in Canada and, in particular, how they relate to COVID-19’s impacts on employment and the workplace.

This guide outlines some of your rights in the age of COVID-19. It is not legal advice, and no lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or by communicating with a lawyer or staff member. If you do need legal advice, we are more than happy to help.

Safety Rights at Work

Employers have a responsibility to provide a safe work environment which includes taking reasonable precautions to prevent harm to employees. As it relates to COVID-19, this could mean:

  • Safety training and education.
  • Installing barriers and implementing policies aimed at protecting employees.
  • Providing personal protective equipment.

Workplace health and safety committees have the right to collaborate in the development of policies and procedures related to COVID-19 prevention.

COVID-19 Employee Rights to Refuse Work

Part of your right to a safe workplace as an employee can include the right to refuse unsafe work or to work in unsafe conditions.

A general fear of exposure to COVID-19 is not enough to refuse work. You must believe there is a specific hazard, communicate it to your supervisor, and the hazard must be severe enough to justify your refusal.

The measures an employer takes to protect workers and eliminate the risks of infection are considered when deciding if a refusal of work is justified. These can include:

  • Mask and social distancing rules.
  • Providing hand sanitizer.
  • Enabling sick employees to stay home.
  • Posting information on preventative measures and symptoms of COVID-19.
  • Following public health guidelines and mandates.

You could face disciplinary action if your refusal to work isn’t justified, so before you do, consult your health and safety rep or the disability and employment law experts at Ertl Lawyers.

COVID-19 Employee Rights and Vaccination Policies

Government agencies and employers have to find a delicate balance between protecting employees and the public from COVID-19 and respecting individual rights.

Federally-regulated workplaces such as banks, hospitals and government agencies must have mandatory vaccination policies in place. These employers can place employees on administrative leave without pay if they are not fully vaccinated or do not disclose their vaccination status.

Other employers may also choose to implement vaccination, testing and/or mask policies. The question is, when does the responsibility to protect employees infringe on an individual worker’s rights?

The test is whether a COVID-19 policy is “reasonable.” To meet this standard, an employer must show that:

  • There is a genuine risk of a COVID-19 infection in the workplace.
  • The policy is effective and necessary to deal with that risk.
  • The benefits of the policy outweigh the breach of a worker’s rights.

A workplace COVID-19 policy also must provide accommodations for employees who can’t comply because of legitimate and documented human rights exemptions. For example, the Ontario Human Rights Commission recommends testing as an accommodation alternative to mandatory vaccinations.

Also, an employer’s COVID-19 policy can not change the terms of the employee’s contract, and employees have the right to know how their personal health information is used.

Laid off Due to COVID-19 in Ontario

Credit: Gustavo Fring Via: Pexels

Laid off Due to COVID-19 in Ontario?

Many workers were temporarily or permanently laid off when the pandemic first shut down non-essential businesses. Employers have the right to terminate employees without cause at any time as long as the reason for termination doesn’t violate the employee’s human rights.

For example, an employer can’t fire you simply for contracting COVID-19 because it is considered a disability under the Ontario Human Rights Code and a prohibited ground for discrimination. Employees let go without cause are entitled to notice, severance pay or both.

An employer can also terminate for cause, which doesn’t require them to provide notice or severance pay. Poor work performance, being late for work or having to shut down because of COVID-19 are not grounds for termination with cause. Termination for cause must be based on severe employee misconduct such as:

  • Dishonesty
  • Insubordination
  • Sexual harassment
  • Criminal conduct

An employer who fires an employee for cause also has to prove that not only was the employee’s misconduct severe, but that the employee acted with malice and termination was the only available option. If they can not, the termination can be classified as without cause and the employee is entitled to severance pay.

Speak to us if you’ve been dismissed from a job, whether for cause or not, to ensure that your rights weren’t violated and that you receive all the severance you are entitled to.

Regarding COVID-19 and temporary layoffs, the Government of Ontario filed Regulation 228/20,  Infectious Disease Emergency Leave (IDEL), under the Employment Standards Act on May 29, 2020. It applies to non-unionized workplaces. As of writing, IDEL is in effect until January 2, 2022, but it has already been extended a few times to respond to constantly changing circumstances.

Infectious Disease Emergency Leave in Ontario

This regulation allows employers to place workers on IDEL and changes the Employment Standards Act (ESA) rules for temporary layoffs due to COVID-19.

Normally, an employer can temporarily lay an employee off or reduce their hours as long as one of the following applies:

  • The employment contract allows for temporary layoffs.
  • The employee has been laid off before or consents to the layoff.
  • Layoffs are a well-known practice in the industry.

That layoff can not last longer than 13 weeks in a period of 20 consecutive weeks, including time not worked and time worked at considerably reduced hours.

If an employer breaches these rules, the employee may be able to treat the layoff as a constructive dismissal and seek damages and or severance pay as compensation – outside of a COVID-19 environment. We highly recommend you speak to an experienced employment lawyer to know if you’re eligible to claim constructive dismissal before taking any action regarding your employment.

Because of the pandemic, however, IDEL was implemented for employers to use as an unpaid, job-protected temporary layoff that doesn’t allow employees to make constructive dismissal claims or seek compensation or severance pay for COVID-19-related layoffs. But whether an employee should still be allowed to do so despite the regulation is currently being argued in court. Also, there are exceptions to IDEL, so if you’ve been laid off, or your employer placed you on temporary leave or drastically reduced your hours because of COVID-19, speak to an employment lawyer

When IDEL does end, employees temporarily laid off due to COVID-19 will no longer be considered on IDEL, and the clock on their layoff will restart. Standard rules regarding temporary layoffs and constructive dismissal in the ESA will resume even if employees’ hours change due to COVID-19.

Credit: Ron Lach Via: Pexels

COVID-19 Income Support for Employees

Did you know that you can claim employment expenses on your tax return for working at home due to COVID-19? Both the federal and provincial governments created several income support programs to help with extra expenses and loss of income during the pandemic. We’ve summarized the COVID-19 economic measures for employers and employees on our blog.

Below are two common COVID-19 benefits for employed Canadians.

Employment Insurance for COVID-19

The federal government changed the Employment Insurance (EI) program to accommodate employees terminated without cause. Currently, the minimum benefit rate for EI clients is $300/week for claims started between September 26, 2021, and November 20, 2021. Check this page for more information.

Canada Workers Benefit (CWB)

The CWB is a refundable tax credit for employed Canadians earning a low income that can be claimed when filing taxes. If you’re eligible for the benefit, you can get up to half of it in advance payments before tax time.

We Deliver Better, Faster Results

If you’ve been laid off or your hours have been drastically reduced because of COVID-19, the clock is ticking. You need expert, honest advice to know if you’re eligible for compensation. You also need an employment lawyer with a history of fighting to get clients the maximum amounts they’re entitled to in as little time as possible. That’s what we deliver – better, faster results.

Have questions about severance in Ontario or any other employment-related concerns? We offer free, no-obligation consultations and fair, flexible rates (including don’t pay unless you win).

David Ertl Lawyer
About David Ertl
David Ertl, LL.B, has practiced employment and disability law for over 20 years. He is also a certified workplace investigator, former adjunct professor, and has written extensively in the areas of employment law, disability insurance, and tribunal practice and procedure.


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