No one was prepared for the crushing economic impact caused by our battle to survive covid 19. Yes, we had in Ontario, the Emergency Management and Civil Protection Act. Our Legislature had granted authority, in limited circumstances, to our Premier to declare an emergency and fundamentally limit our freedoms for two week periods. But, i doubt anyone ever expected our government to shut nearly everything down. Other than for essential services, our ability to do business and earn a living was stopped. Cold. The commentaries below set out the temporary regulations that changed our workplaces and try to explain how existing statutory obligations and common law rights may be applied.
None of us know for sure. Every week new regulations appear or politicians announce adjusted programs to address issues which have arisen. Not only is it hard to operate a business, it is challenging to keep up with the new rules of the day. This site will help.
For those who have been able to work, doing so safely has become more important. Employees have demanded additional personal protective equipment. They have exercised their right to refuse unsafe orders. They have relied upon newly issued protocols to refuse illegal orders. Employers have been forced to keep up to keep operating.
Other employers, the majority, had little or no work when the government shut down non-essential services and closed most retail operations. Unionized employers followed the terms of their collective agreements to lay employees off temporarily, or to reduce hours and alter schedules. ( By contrast, regulations were published allowing essential service employers to ignore restrictive provisions in order to adapt service delivery.)
Non - unionized employers ventured into unfamiliar waters. If employees had written employment contracts, very few permitted lay offs. Some provided for termination notice or pay, but lots of offer letters and employment arrangements said nothing about short term work dislocations caused by government orders in response to a world-wide pandemic.
The Employment Standards Act sets out the minimum standards for work places. Employers cannot contract out unless they offer better terms. That Act permits temporary lay offs up to 13 weeks with no notice. As long as the employee is recalled, employment continues. Such a temporary lay off can be extended up to 35 weeks, if the employer maintains its benefits program for the laid off employees. Only if the lay off extends beyond its statutory limit does it become a deemed termination. ( So, if the government caused closures led to lay offs in mid-March, 13 weeks culminates before July.) For all employers using temporary lay offs, the business question is when will there be enough work in order to recall staff.
Contradicting the apparent statutory right of employers to lay off temporarily is the common law proposition that no regular employee, full time or part time, can be laid off. In theory, at contract inception, reasonable persons would not have negotiated a right in the employer to impose unpaid lay offs. Such conduct would be a “ constructive dismissal” entitling the employee to pay in lieu of notice of termination. This would apply even if the employer said the lay off was short term and declared an intention to continue employment.
At common law, one side to the contract may try to negotiate new terms. An employee may be prepared to accept a short term lay off or reduced wages or a shorter work week rather than search for a new job in a very bad market. Alternately, an employee asserting constructive dismissal must begin to search diligently for another job. They must attempt to reduce losses by finding other work. it is that employee’s “former” employer offering similar work, can the employee reject it and demand pay in lieu if there is no other available work? Each case will depend on its facts.
Confusing these issues more are the support programs offered by the Federal Government. Besides the traditional employment insurance to protect employees, there is the Canadian Emergency Response benefit ( “cerb” ) for a broader group of persons out of work. There is a program for employers called the Canada Emergency Wage Subsidy (“ cews”) designed to reimburse employers who keep people employed in some fashion even if they are at home not actually working. The cews does not contemplate termination; the subsidy helps continue employment. So, is the employee sent home temporarily on partial salary funded by a cews someone who has been constructively dismissed?
All these problems require legal attention to solve. This site helps. We, as lawyers, are available to assist too. As return to work becomes a reality, a real question will be how long it will take for businesses who have suffered substantial revenue reductions to call employees back? Just because a Company can open again does not mean there will immediately be the same amount of work. We may face part time first, work sharing, job redesign. Who knows?
Also, many employees have been working at home, where they know they are more safe. Some will ask “why can’t we stay longer until a vaccine is available.?” They will suggest that their performance has been just as good. They will question the need for offices. Their perspective on work will have changed. What does it mean,at law, if the employee refuses a recall proposing instead to work from home until Ontario is safe again? Is that a rejection of recall? Has the employee quit if he is still willing to perform service from home?
It is safe to say, there are more questions than answers. The prudent employer will be proactive, ask ahead, develop a plan to be safe legally and stay well on course to recovery. Give us a call. Sooner. We can help.