Lindsay Scott is a Toronto-based employment lawyer and a partner at Paliare Roland Rosenberg Rothstein LLP. She also volunteers at the free employment law hotline run by Pro Bono Ontario, and is the mother of a one-year-old. She spoke with Chatelaine about the effects of COVID-19 on Canadian businesses and employees.
So, most of the calls that you’re getting right now are about layoffs, is that right? Is that temporary or permanent layoffs? And what kind of things do people want to know?
Both. With temporary layoffs, it’s “I’ve been told that I’ve been laid off. I don’t know when they’re going to bring me back. What does this mean?” Other clients have been permanently laid off, what we call termination, and then it is a matter of negotiating an exit package. We’re getting lots and lots of those calls. There are calls from employers as well, wanting to know how best to safeguard returns to the physical workplace, which is really complicated.
Let’s start with temporary layoffs. My understanding is that sometimes you get to keep your benefits. And once the company is hiring again, you are meant to get priority. Is that right?
At its most basic, a temporary layoff is when your employer tells you that you are not required at work and you are not going to be paid temporarily. Under provincial legislation, employers can temporarily lay off employees without it amounting to a termination or a firing, so long as you’re recalled to work within a certain period of time. That period of time varies from province to province and some provinces, like B.C. and Alberta, have moved to extend the period before which a layoff is turned into a termination because of the COVID-19 situation.
During a temporary layoff, you’re eligible to receive employment insurance if you are not receiving income. As you mentioned, usually your employee health benefits are continued. You are free to look for and accept another job during this time, if you find one, but you may be recalled by your employer at any time. You would need to be available, otherwise they might consider you to have resigned.
Even though temporary layoffs are addressed in the provincial legislation, strictly speaking employers don’t have a right to implement a temporary layoff unless it is explicitly permitted in an employment agreement. We usually see those provisions in the context of seasonal workers, where we know that every wintertime, for instance, the business closes, and so the employer and employee agree at the outset that layoffs will be part of their arrangement.
Most agreements do not have that type of provision, though. If you do not have an agreement that allows layoffs, then legally, you are allowed to treat a layoff as a termination of your employment, which means that you have a right to notice and other entitlements, likely severance. Right now, that’s a bit of a gamble, because the unemployment rate is so high and jobs in so many industries are scarce. It is possible that courts would actually consider employers to have the right to implement a temporary layoff for a health and safety measure, or because a workplace has been ordered to be closed by a government authority.
We don’t know. This is obviously unprecedented. Most employees will probably decide to wait and see if the employer brings them back. And if they do, and they’ve been out of pay for the period that they were laid off, then they should speak to a lawyer about whether it makes sense to try to recover some of that pay.
What if you end up being terminated?
If your employment is terminated, then you have certain entitlements under provincial legislation. You might be entitled to more under the common law, which is judge-made case law that has developed over time. You should speak to a lawyer about those entitlements.
At common law, employees are entitled to reasonable notice of termination, which considers the employee’s age, their role, their years of service for the employer, and the availability of comparable replacement work in figuring out the appropriate length of notice. Right now, many employees are asking whether they should be receiving a longer period of notice than they typically would, a “COVID bump,” if you will, since it may take longer to find replacement work in this economic climate.
This is not something that’s been judicially considered yet. Certainly, it’s something that employees should be pushing for, recognition on the part of the employer that it will take longer to find another job and so notice periods should be longer.
It’s really hard for parents right now, trying to work full-time and take care of kids full time. I was wondering about workplace accommodation based on family status, which is a clause in provincial human rights legislation. Could it help parents make their situations a little more bearable? If someone came to you and said “I’ve used up all my vacation days, and my partner’s used all their vacation days, and now we don’t know how to get our work done,” what kind of options would you give them?
Provincial human rights legislation protects family status, and employers must provide accommodation for that up to the point of undue hardship. So many families are facing difficult situations juggling work and child care right now. Employers and employees should be working together to figure out how to balance the employee’s need for accommodation and the employer’s legitimate business requirements.
Some suggestions I have encountered include altered work schedules. Maybe you can’t work a full eight hour day, but you can work six hours a day and then one day on the weekend. Or maybe you can work early mornings and then evenings, when your kids are asleep or something like that. There’s also using vacation and sick or lieu days to lighten the burden. If normally you’re required to be in the physical workplace and you work for an essential business, asking to work remotely, that’s a great example.
There is also the possibility of negotiating to work less, for less pay. So, maybe you say, “I’m prepared to take a 25 per cent pay cut, if I can work 25 per cent less.” It could also be that your employer simply lowers its expectations of you while you do not have child care. There is no change to your pay or your role, but they just understand that instead of billing eight hours a day, you are only going to be able to bill four and that’s going to be fine for now, in these unprecedented circumstances.
Employees cannot expect a perfect accommodation, it really is meant to be a two-way street and a compromise between employee and employer. It is worth asking for what you want, and continuing the dialogue from there.
The accommodation can’t pose “undue hardship” to them? Is that right?
Yes, that’s right. The employer has an obligation to accommodate up to the point of undue hardship. The question is whether the accommodation is going to be unduly burdensome on the employer, astronomically expensive, or unsafe, for instance. So in this situation, if you are somebody that is expected to answer the phones from 9 to 5, and now you can no longer be available from 9 to 5, and the only times you’re available are times when no one’s going to be calling, that could be a problem.
But if it’s something where it’s really a results-oriented workplace, and as long as you produce whatever you’re producing they don’t care how and when you do it, then that’s great. There should be flexibility provided to you.
I should mention, too, that some provinces have created job-protected unpaid leaves of absence for employees who need to stay home and care for their kids. You have to be provided with the time off and your job has to be reinstated at the end of the leave. During the leave, you would be eligible for employment insurance or other government subsidies. Not an ideal circumstance, because you’re not making money, but you can’t be fired for needing to take unpaid time off to care for your kids during this.
What if your employer imposes a temporary pay cut?
Many employers are asking employees to accept a reduction in wages or hours in order to maintain jobs and manage expenses.
You do not have to accept any significant negative changes to your employment, like the amount of your pay, your hours, benefits, etc. Your employer has to negotiate any changes with you. If your employer imposes a significant negative change without your agreement, then that may constitute a constructive dismissal, which you can treat as a termination and gives you a right to damages for any loss in pay. That is a fair legal argument, though many people would not take that risk in this really uncertain economic environment.
Some employees may decide that they would rather keep their job and agree to the changes. If they do, I would suggest doing three things. One is to put a timeline on the changes: “yes, I’ll agree to a 20 percent pay cut, but only for one month, to be renegotiated when that time period ends.” Two, explain that your agreement is only contingent on the current pandemic situation and its impact on the business. So for instance, “I’m only agreeing to this because the workplace has been closed and so if it is able to reopen, I want to revisit this agreement.” And three, make it clear that you are not waiving any rights to pursue legal action later to recover the lost income. If you’ve made it clear that you’re preserving your rights to a future claim, that may motivate your employer to bring you back to full pay as soon as possible.
It remains to be seen how Canadian courts will handle situations where employers offer to reduce hours and pay instead of just terminating employees. I could see some courts recognizing the challenges that employers are facing, and they may be more forgiving for employers having to make minor reductions in order to save jobs.
Another question I have is about school and daycare re-openings. What if I don’t think it’s safe to send my child to school, but my employer expects that with schools open I will send them, so that I can work more? Are they able to say that I have to?
I think the outcome would be very dependent on the facts. If the child was immunocompromised, for instance, that would help the employee maintain that their child cannot go back to school and so the parent needs accommodation. Even if you have other vulnerabilities in the family, say an elderly family member in the home and so everyone is practicing really strict physical distancing outside of the household, that could also be a reason to maintain that your child needs to stay home, such that you need accommodation.
You could also look at the school itself. Has there been an outbreak in that school? Maybe your family does not have specific vulnerabilities, but for some reason the school isn’t safe, the classroom layouts do not permit physical distancing, for instance). That could also support an accommodation request.
If, though, there are no specific vulnerabilities in your family and everything seems fine with the school, then as I said before, employees aren’t entitled to a perfect accommodation. In the absence of any kind of heightened individual risk, I think a court may find in favour of the employer that returning to school was a reasonable option for the parent. It really depends on your personal situation.
Will I have to go into my office if I don’t have a car and I’m worried about the subway, or other public transit?
I think everyone is going to have some measure of anxiety returning to a physical workplace, but especially people who have to rely on mass public transit. Your employer has a responsibility to keep the workplace safe, but that responsibility doesn’t go beyond the place of work to things like your commute.
That said, if you have a pre-existing condition or a specific vulnerability to COVID-19, you’re immunocompromised or pregnant, what have you, you could try to seek accommodation. Maybe it’s a modified schedule where you can avoid commuting in rush hour, so there are fewer people on transit, or working longer days but going in to the workplace less often. Again, it’s an area where you would have to negotiate with your employer. But you couldn’t simply not go in because you’re concerned about transit.
Are employers obligated to provide masks or gloves in workplaces?
The provincial governments have advised that Personal Protective Equipment (PPE) should only be used when all other mitigation measures have been implemented. In other words, PPE is only considered after employers have done everything else that they can do to make the workplace safe, like staggered schedules, reconfiguring workstations, etc. to permit physical distancing. Employers should be following all of the government guidelines about making workplaces safe, where possible.
Where an employer can’t totally eliminate a COVID-19 hazard, then they may consider the use of PPE, like masks, gloves and eye protection. If the employer wants to require or encourage its workers to wear PPE, the employer should supply it. And then, importantly, if they’re going to provide masks to employees, they should provide a policy on PPE, and training for employees on how to properly use it, as well as information about its limitations.
I have been asked many times in the past few weeks, “do I have to go back to the physical workplace?” If you are employed by an essential business or a business that is open, and you normally work in an office, yes, you’re expected to go there as you normally would if your employer requests that. But—and it’s a big but—employers have the obligation to provide a safe work environment, which right now is a really, really challenging thing to do. It would be totally within an employee’s rights to find out what the employer is doing to prevent the spread of COVID-19 and protect its employees before going back to a physical workplace. What are the policies? What changes have you made, what training will be provided? If you’re dealing with the public, will PPE be available? I would definitely be asking questions of an employer before going back to a physical workplace.
But before you think about not going back, there has to actually be a reasonable basis for your concerns. It has to be a reasonably formed view that an employer is not complying with health and safety law. It can’t just be the generalized risk that, frankly, we’re all going to be facing when we go back into the world.