COVID-19 FAQs For Non-Unionized Employees In Ontario
No. Ontario employees are protected by the Ontario Human Rights Code from discrimination. COVID-19 is a protected ground under the Ontario Human Rights Code. This means that an employer cannot terminate an employee because the employee either has COVID-19 or is believed to have COVID-19. The Ontario government has likewise set out that employees are entitled protected leave due to various COVID-19 related circumstances. These can include, but are not limited to, absence from work because you are sick with COVID-19 or are treating a family member who is sick with COVID-19.
Can I be terminated because my employer is experiencing a downturn in business due to the COVID-19 pandemic?
Yes. An employer is entitled to terminate you from your employment upon complying with your minimal statutory entitlements under the Employment Standards Act and, under most circumstances, upon providing you with a reasonable notice of termination at common law or pay in lieu thereof. In the event of a dismissal with cause, an employer may terminate your employment summarily without notice or pay in lieu thereof subject to any minimal entitlements you may have under the Employment Standards Act.
The answer to this question is complicated. Generally speaking, a lay-off is only legal if the employer has an express or implied contractual right to put your work on hold. In the absence of such a contractual right, an employer is not allowed to cease your work on the assumption that you will be required to return to work sometime in the future. At common law, such an act on the part of the employer would amount to a “constructive dismissal” thereby entitling you to sue for severance.
However, in late May 2020, the Ontario government began to bring into law various regulations in relation to temporary layoffs by suspending or modifying layoff rules under statute. Pursuant to such changes, if an employer laid you off or reduced your hours of work or pay due to reasons related to COVID-19 you were deemed to be on a leave of absence and you would not be able to claim constructive dismissal under statute. Originally, this applied to the period commencing on March 1, 2020, and ending on the date that was six weeks after the day the Ontario emergency state was supposed to end. Thereafter, the regulation has extended this state of affairs to January 2, 2021. Further regulatory amendments have effectively extended the status quo to July 3, 2021, then, to September 25, 2021, and, subsequently, to the end of July, 2022.
At this point, it remains unsettled whether the aforementioned changes in the law encompass rights and obligations arising under statute only or whether these regulatory developments affect the employee’s rights at common law also. Ultimately, because each case is unique it is strongly recommended to seek the legal advice of a competent employment lawyer.
The answer depends on whether the employer’s concerns are reasonable, objective and consistent with information from medical and Ontario’s public health officials. The employer may likewise have valid and objective health and safety concerns as it is obligated to provide employees with a secure work environment. In the absence of the above considerations, any unfounded concerns could be regarded as discriminatory under the Ontario Human Rights Code. Furthermore, preventing you from working and failing to pay you may result in liability to the employer.
Yes, if allowing you to come in to work means putting others at risk. The employer has to balance your right to be free from discrimination with the obligation to provide other employees with a healthy and safe work environment. The employer can ask that you stay at home for the length of time consistent with information from medical and public health officials.
Yes, if allowing you to come into work means putting others at risk. Similarly with an employee who has been diagnosed with COVID-19, the employer has to balance your right to be free from discrimination on the ground of family status or by association with the obligation to provide other employees with a healthy and safe work environment. The employer can ask that you stay at home for the length of time consistent with information from medical and public health officials.
Ultimately yes, if your fears are unfounded and the employer has gone through the necessary steps to ensure compliance with health and safety laws. Unless you have reasonable grounds to doubt the health and safety of your workplace or if the reason for your non-attendance falls under one of the grounds under the Ontario Human Rights Code entitling you to accommodation, failure to attend work could eventually constitute cause for dismissal.
Am I entitled to be accommodated because I have to stay at home with my kids due to school closure or if I am taking care of an elderly parent?
Yes. Employers are obligated to accommodate employees to the point of undue hardship under the Ontario Human Rights Code, including for reasons relating to eldercare or childcare obligations. Your employer has to look into reasonable alternatives to accommodate you in that regard. As an employee, you have a responsibility to cooperate with your employer and accept reasonable accommodation suggestions. If accommodating you has become unduly hard for the employer then the employer does not have to continue with the accommodation process.
No. In the absence of objective or reasonably held health and safety concerns or the need for accommodation under the Ontario Human Rights Code which the employer has to discharge to the point of undue hardship, an employer is entitled to expect you to physically attend work. Failure to do so may amount to cause for dismissal.
An employer cannot force you to undertake a medical assessment such a temperature check. However, the Ontario Human Rights Commission has stated that employers who wish to have an employee tested to determine an employee’s capability to perform on the job duties may be permissible under some circumstances. In other words, if the employer has a valid reason to ask for a medical assessment and if you wish to keep your job, a COVID-19 test may be within the realm of what is allowed. However, employers are not allowed to act in a manner that is unduly intrusive with the employee’s privacy rights and the propriety of any such assessment (including the extent of the information gathered from the employee) ought to be determined on a case by case basis. For instance, the Ontario Human Rights Commission advises that the employer should only obtain information that is reasonably necessary to establish the employee’s fitness to perform the job and restrictions that may limit the ability to perform the job, while excluding information that may identify a disability.
The answer to this question is complicated. Fundamental changes to the employment relationship are considered constructive dismissal entitling the employee to compensation. However, employees also have to mitigate their loss by accepting alternative forms of employment. Sometimes this means that the employee is expected to stay or go back to the former employer. On the other hand, if the employee stays too long in a circumstance where it made objective sense to leave, the employer may argue that the employee acquiesced to the new terms and had forgone the right to claim compensation from the employer.
Moreover, in late May 2020, the Ontario government brought into law regulation which sets out that a temporary reduction in work hours or wages for reasons related to COVID-19 is not constructive dismissal. This applies to the period commencing on March 1, 2020, and ending on the date that is six weeks after the day the Ontario emergency state ends. It is unclear whether this change in the law applies to the Employment Standards Act only or the employee’s rights at common law which are often far more robust and for which an employee may bring a civil action.
Yes, if you have reasonable grounds to believe that the workplace is unsafe and the employer is failing to follow minimal safety standards then you may refuse work and even apply to the Ministry of Labour for assistance. Furthermore, the employer is not allowed to terminate or discipline you because of such a refusal.
An employer cannot force its employees to be vaccinated. However, an employer may choose to terminate someone’s employment for a refusal to be vaccinated. The answer to whether the employer would be legally entitled to do so is complicated and fact-dependent. For instance, an employee in healthcare would find it more difficult to avoid the repercussions of failing to comply with a vaccine mandate. Likewise, whether the workplace is unionized or not will play a role. Whether an employee’s human rights are triggered by virtue of the a vaccine policy or if the employee is able to work remotely will also be contributing factors in the analysis. Finally, it is questionable whether in the non-union context a refusal to comply with a vaccine mandate would be “cause” for dismissal if the employment agreement is silent on the issue.
There have been several recent decisions in the unionized context that represent the beginning of a jurisprudential evolution on the issue of COVID-19 vaccination at work. However, at this point, it is too early to tell what the correct answer is and each case will likely turn on its own facts.