false
Catalog
COVID-19 & Labour Law: What You Need to Know
COVID-19 & Labour Law: What You Need to Know
COVID-19 & Labour Law: What You Need to Know
Back to course
[Please upgrade your browser to play this video content]
Video Transcription
Hello, and welcome to this afternoon's webinar on coronavirus issues. Our speaker today is Killian McParland from Stuart McKelvey. Before I turn it over to Killian, I'd like to let those of you who are live with us know that you may submit questions during the webinar via the chat box in the lower left side of your screen. This webinar will also be recorded so that you may watch or re-watch on demand at your convenience. And with that, I will turn it over to Killian. Thank you, Liz. Good afternoon, everyone. I guess we may be good morning still to those in BC on the West Coast. So like Liz said, my name is Killian McParland, I'm a labor employment lawyer at a law firm called Stuart McKelvey. Some of you may have dealt with us in the past. We're the largest regional law firm out in Atlantic Canada. So today I'm going to be going through some of the employment-related legal issues that are stemming from COVID-19. Obviously, everything right now is very new. We're getting a huge amount of calls and requests for assistance from our clients. And I know no doubt this is having a significant impact on all of your businesses. So what we're going to try and do is take you through some of the key things and most common things that we're seeing on our end coming up right now, keeping in mind this is a rapidly evolving situation. And like Liz said, I understand that you can kind of submit questions. I do kind of have a final slide and I'm planning to kind of review those at the end. So we will circle back to those at the end. Feel free to send those in at any time. And you may find that a bit later in the presentation, I'll end up covering the question anyway. Okay. So look, before we get into, I guess, the more substantive material, the kind of different areas of law that might be kind of cropping up in your business at this time, I wanted to kind of start off, you know, this is a quote that's going around a lot. It's being called unprecedented and obviously it's been labeled as a global pandemic. So certainly it is unprecedented in recent times and in the context from a legal perspective in our current kind of modern legal and regulatory framework. As a result, there is inevitably going to be a lot of legal uncertainty in terms of the decisions and issues you're facing in your business today. That is something that we all kind of have to accept as the present reality and kind of the new normal for the short term. So there is no kind of old playbook we can dust off for COVID-19. We are kind of, you know, dealing with new and evolving situations. So I make that point at the beginning just for a few reasons to cover off the bat. First is that as business leaders, you're all used to weighing various risks, including legal risks, financial risks, whatever other kind of risks that you're dealing with in that particular decision, and then you ultimately have to exercise your business judgment to make the best decision you can in the circumstances. That'll continue to be the case and that'll serve you well. Second, we all need to try and stay agile and as up to date as possible. One issue everyone's going to be dealing with right now is information overload. We are getting a huge amount of changes and press releases and all this sort of stuff from in particular government, both at the federal and provincial level. I imagine some of you have businesses across a number of different jurisdictions. So trying to juggle and stay on top of all of that is a challenge, but we all need to do our best to do so. And you know, in particular, stay on top of those public announcements affecting you, your business, and of course, your employees as well. And then third and finally, I think it is important in times like this to get advice. Obviously, that's a bit self-serving on the legal side of things, but it's also important. This is a medical issue at its kind of heart, so make sure you are getting kind of medical advice and following the kind of most up to date health and medical information that is available. Hopefully, we're getting lots of information released directly from the government. They've set it up to make that kind of as easy as possible. Obviously, the flip side of that is a bit of information overload, but just make sure you are trying to get some helpful advice as you make these decisions. Okay. So as we jump into it, this is how I kind of have the presentation planned. Occupational health and safety first. Some considerations about human rights and discrimination, concerns, working conditions, how can we change those, what are the issues there, leaves and absences obviously are kind of coming up. Then we'll take a quick look at temporary layoffs, which obviously you've probably seen in the news is something that is being taken by, and actually being taken by many companies across the country now. And then we'll take a look at the government programs and benefits, just so you're aware for kind of what may be available for your employees, as well there have been a few changes in new programs announced recently that maybe you've heard of, maybe you haven't had a chance to look at and kind of get a sense of what it really means. So we'll cover that, and then like I said, we'll circle back at the end for any residual questions. In going through this, I'm going to kind of, you know, it's not an exhaustive review of everything to do with these different areas, but these are, I'm going to try and focus on kind of the key things we're seeing crop up with our clients and the kind of questions we're typically getting. Okay. Okay. So into occupational health and safety, like, which will be the case with most of the things I cover here today, the exact requirements, legal requirements will vary by jurisdiction, so province to province or federally if you're federally regulated. However, kind of what's common in all jurisdictions in Canada is that employers have an obligation and must take every precaution reasonable in the circumstances for the protection of their workers. So that's kind of keeping that front of mind can help organize everything to do with occupational health and safety, which kind of all the specifics fall below that. So that includes identifying hazards in your workplace and taking steps to remove or mitigate that risk. COVID-19 or the coronavirus is obviously a hazard, so that needs to be something that you're thinking about. Like I said from the beginning, this is a medical issue, so we should all be following medical expertise. Again, thankfully, the federal and provincial government do have resources set up to kind of try and put that into one centralized area. As many of you probably know, the federal government has a dedicated website for the coronavirus issue and kind of their centralized database for all information, including medical and health updates. And then each, to my understanding, each province has an equivalent website. Certainly all the Atlantic provinces do as well as Ontario. So in terms of maybe kind of practical actions, what are people doing? And you may have kind of implemented a number of these things or all of them and more in your own businesses, but just kind of at a high level, some common actions that we're seeing. One, which I think is important, is keeping a regular communication with your employees, updating them on the most recent health advisories that imply, you know, where they're living, the recommendations, and then more recently we're seeing more and more orders. So we've kind of seen things escalate now across Canada to the government going from kind of recommendations, we recommend you stay home if this is a situation, to orders, you were required to stay home if you've, you know, for example, traveled out of the country recently. I think this is important both for kind of employee morale, but also we're in uncertain times, you're going to have a lot of employees who are dealing with stress and that sort of thing, so the communication can be helpful in that regard as well. Other common kind of actions we're seeing, pushing out enhanced hygiene practices. You know, big emphasis these days is on washing hands or using alcohol-based hand rubbing products, not touching your face, coughing and sneezing into a tissue or the inside of your elbow. So following these kind of recommendations, but also kind of making sure that your employees are aware of that and that they're expected to follow these health expectations. Many businesses have been engaging additional cleaning for their workplace. We've heard a lot about social distancing, so taking whatever steps you can to avoid working in close proximity to others. For at-risk employees, requiring them to stay home, if they can work from home, that's great. In many cases I appreciate kind of particularly in the more retail, store, manufacturing environment, that may not be possible, but I think in most provinces now this has become a health directive as opposed to a recommendation if they've traveled out of the country recently. The directive is to stay home for the incubation period. And then the last one, like I said, is encouraging working from home where possible. So if you're seeking medical information, like I said, the government has kind of dedicated resources available. I think each province also has a non-emergency medical information number you can reach out to. Locally here it's 811. And then some companies may not actually be aware of this, but you can reach out to your own EAP provider often, and often they can provide health and medical kind of expertise and information that can be helpful as well. The next point I have on the slide is the right to refuse unsafe work. So many of you may already be aware of this. It's not new. It's just something that's kind of coming up in a new way in workplaces in the new context we're dealing with COVID-19. So each statute in each jurisdiction prescribes a slightly different process, so you need to kind of take a look at, understand, follow the process in your jurisdiction and seek legal advice for the circumstance, you know, whenever you kind of consider it necessary. But generally speaking, the procedure begins with the employee refusing to do some work on the basis that it is likely to endanger their health or safety. Under most statutes, they must notify their supervisor first. That's how it's supposed to kind of begin. And then to bring this complaint, they do have to have reasonable grounds to believe that it's likely to occur. When this happens, you have a statutory obligation to investigate the complaint or work refusal, and then you have to take any, based on your investigation, you have an obligation to take any remedial action you determine necessary. So if there is a valid concern there about health and safety, you need to take steps to kind of mitigate or remove that risk. So an example that we're seeing now is, you know, a common one I've heard is someone refuses to work on the basis that they think a coworker has been, you know, out of the country, and they're not complying with the health directive to stay home and self-quarantine. So that obviously needs to be addressed. You need to find out what the truth is, what is correct, and deal with that appropriately. If whatever the case is in terms of the required process, you take your action. If the employee isn't satisfied that that's sufficient to deal with their health and safety concern, they usually have an option to escalate it one step further, usually internally to an Occupational Health and Safety Committee. That varies a little bit by jurisdiction, and then ultimately if it still can't be resolved, it gets escalated to the kind of applicable government agency for occupational health and safety in your jurisdiction. They come and investigate and make a binding order on everyone. So just to kind of as a refresher on that process, we're seeing it come up a little bit in the new normal with COVID-19. Finally, for occupational health and safety, we are getting a lot of what-if questions. Obviously, there are specific issues that are coming up, but a lot of clients are also kind of wondering, well, how do I deal with X if it happens, right? Everyone wants to be prepared for the worst and all the kind of unlimited different types of scenarios that could come up in the present circumstances. So one I thought might be helpful to just touch on, and a very common one, is what if an employee is diagnosed with COVID-19 after having been in the workplace? You know, what do I do? So I have to say off the bat, every situation is different. You should get specific legal advice and kind of work through that scenario with appropriate counsel. But I'm going to kind of go through at a high level some of the actions that we've seen taken in those circumstances, and ones that I think you should certainly consider as you plan for that situation and if you're dealing with it yourself. So the first step, I think, to consider, and this is probably a very obvious one, is that the diagnosed employee, if they, you know, they certainly shouldn't be allowed to come back to the workplace, so they should immediately put on a leave of absence. And at a minimum, they should be out of the workplace for that 14-day incubation period everyone has been hearing about. To the extent you can, you should try and take inventory with them about where they've been working recently, who they've been interacting with, you know, what departments have they been working in, who have they been interacting with, what rooms, what parts of the workplace have they been in, and any other kind of company locations that have been, you know, in close proximity to that individual. Obviously, if you're going to have that conversation, it should not be face-to-face, over the phone or email if possible. And then also kind of explore that within your workplace. So you want to make sure you understand, okay, what is, where is the kind of heightened risk for people who have interacted with this individual? Another step we're seeing, and I mentioned at the beginning, often EAP providers can provide helpful medical advice in terms of dealing with health situations. So we do have clients who are reaching out to their EAP providers to see if they have any specific medical advice for how to deal with that and kind of prepare a plan of how to deal with that. You should also contact your local health agency or provincial health authority. Okay, and what I would recommend doing is obviously you need to let them know that there was an employee there who you understand is infected. What we're seeing a lot of clients do is kind of trying to make a bit of a plan before they call the health agency and then let the health agency know their kind of the proposed plan. And that way you can kind of get feedback from the health agency about whether they think that's an appropriate plan and kind of get the benefit of their medical expertise and advice as well. The next step, I mean, in terms of specifics of what we've seen this to look like, obviously you can follow and kind of consider any information you get from the EAP provider or the health authority, but specific actions we've seen taken is arranging for kind of a very thorough disinfecting and cleaning of the affected parts of the workplace. Generally you should be looking at notifying all employees about the positive diagnosis of COVID-19. There is a general obligation in most provinces to let employees know if there is a particular hazard they could have been exposed to at the workplace. And then finally, you need to kind of go back to that inventory you made in terms of who's at risk, who is interacting with this employee, and you should strongly consider whether you need to put all of those employees on leave as well, as they may be, you know, they're at risk of essentially having COVID-19 or contracted it from that co-worker. There's been some questions related to that about, okay, well, do I need to let workers' compensation know, who do I have to notify, that sort of thing. You should get legal advice on that because it does vary by province. One kind of core component that usually comes up is for it to be a workplace-type injury or illness. It usually has to have kind of occurred in the course of employment. That's going to be very difficult for employers to know whether, you know, COVID-19 was contracted at the workplace or out in public, or maybe this person was traveling recently, whatever the situation is. So you should kind of, in my opinion, you should get some specific legal advice about that to determine what your reporting obligations might be. The last point on that that we do see come up is, you know, privacy concerns. That's another one you should get specific legal advice on because it's different in every province. Some provinces, for example, Alberta, have specific legislation, privacy legislation that applies to employees. Other provinces like Nova Scotia don't. In any event, even where there is not specific obligations, there's kind of best practices. Usually you should be looking at kind of limiting it to a need-to-know basis and usually trying to avoid, you know, where you can report that this has happened without disclosing personal information about the person, the infected individual, such as their name and that sort of thing. Okay. So that's what I wanted to cover on occupational health and safety. I appreciate there may be some questions on that. Just turning to human rights and discrimination, this one will be a little bit shorter. Again, kind of beginning at the basics here, in all jurisdictions in Canada, employers are prohibited from discriminating against individuals in the course of their employment, so against employees. And you also have other obligations in terms of how you interact with your customers, right? So the language usually used in human rights legislation is when you're providing services to the public. So you have obligations not to discriminate while you're doing that as well. The human rights protections are kind of limited to specific characteristics or what are often called prohibited grounds. One of the ones that I'm sure everyone is aware of or has heard of is a medical disability or disease. The interesting question that's going to come up is that most human rights authorities in Canada have held that kind of more transitory illnesses, like the common cold and the flu, are not protected under human rights legislation. So that's going to raise the question of whether COVID-19 is more in that kind of category and whether or not it is a protected ground or part of that protected ground of a medical disability or disease. Ultimately, at this point, there's no definitive answer. It's brand new. There's not going to be any reported decisions on it for at least some time. As a result, we would, again, recommend you get some advice on that if you're dealing with a particular situation where you're worried about that. One thing to note, though, is that in Ontario, the Human Rights Commission just last week issued a policy statement, so it's not binding on everyone per se because it's not a formal decision as of yet, but based on what the Human Rights Commission in Ontario said, they're taking the position or they intend to take the position that COVID-19 is a disability covered under human rights legislation, and therefore, all the responsibilities that come with those obligations would apply. Okay, so just be aware that there's certainly risk that it is considered a disease or disability under human rights legislation, so you should be considering that as well. So assuming it is a protected ground, as many of you may know, whenever there's a human rights issue or discrimination issue, you have what's called the duty to accommodate to the point of undue hardship. This is always, in human rights cases, it always has to be individualized and kind of dealt with on a case-by-case basis on kind of what's the limits of your obligations to accommodate someone in that circumstance. I think everyone is expecting that if and when these issues come up in the future, there will hopefully be an appreciation that we were in kind of very unusual times. People were trying to make the best decision they could in very difficult situations and trying to make sure they put the health and safety of their stakeholders, employees, customers, everyone first. It's important to know, though, and good to know that when you're looking at the point of undue hardship, that does consider health and safety obligations. So again, the tricky thing sometimes will be it will feel like your human rights or anti-discrimination obligations almost sometimes can be in tension or in conflict with your occupational health and safety obligations. That's why the human rights commissions do consider health and safety obligations when they're assessing any sort of complaint that goes forward. At the end of the day, it is a brand-new disease and situation, so you may want to consider getting advice on that. Finally, on this topic, just good to keep in mind, for human rights legislation, medical disability disease is the obvious one. There are other types of human rights issues we're seeing potentially crop up with the COVID-19 situation, one of which is that in most jurisdictions, as you're probably aware, it's prohibited to discriminate on the basis of someone's ethnic origin, place of origin, or race. There's various different terms used in different jurisdictions, but basically, it boils down to the sense that, obviously, you can't assume that someone has COVID-19 on the basis of their race or that they're at a higher risk of COVID-19 on the basis of their race. There's certainly no medical evidence to support that. I say this, obviously, that you need to keep that in mind when you're dealing with your employees, but also, as I said at the beginning, it's not your obligations are just limited to how you treat your employees, but how your employees are interacting with the public. We have seen some kind of issues in the news about people treating others negatively, apparently on the presumption that they either have COVID-19 or at a higher risk of having it simply because of their race, so it is, again, important to make sure that if there are any sort of issues like that coming up at your workplace, you're dealing with them and making sure it's clear to all employees that that's not appropriate. The last status of protected ground I'll touch on before moving on is family status is a protected ground in many jurisdictions. This is a tricky one. Unfortunately, the law is not particularly settled, but I think for the purposes of this presentation, I'll just flag that it can be engaged in relation to childcare obligations. Obviously, this is a big issue right now with kind of across the country, we're seeing schools and daycares closing down, putting a lot of strain on parents. I would hazard a guess that a number of you who are listening here today are probably dialing in from home and listening while you have to make sure you're also kind of taking care of your children. So it's important to keep that in mind. You do have obligations in relation to that to your employees. One thing, though, that we're seeing that kind of may almost take the discretion out of your hands anyway, is a number of provincial governments have taken steps to kind of take it out of the world of human rights and just say it's a protected leave. So many of you may have seen that in Ontario yesterday, for example, they announced that there is now a protected leave of absence. Well, there's a number of new ones, but one of the basis is if you need to stay home to take care of your children because of COVID-19, including because of the school closures. So good to keep that in mind from a human rights standpoint. But we are also seeing this kind of be kind of dealt with more in a black and white way through new leaves of absences. Okay. So that's a good transition. The next topic I wanted to just touch on are working conditions and leaves, including leaves of absences. In the circumstances, we're getting, obviously, a huge amount of questions about changing working conditions to really adapt to the changing business environment that everyone has to kind of figure out how to operate in to the extent you can stay open. The two big ones we're hearing about are working from home to the extent that's an option for your employees. Obviously, in some industries and types of positions, working from home is not an option at all, but it is a big one. And the other one we're hearing a lot about is, you know, what's our ability to reduce hours of work? Okay. I guess, first, I'll touch on the legal considerations there. First, there are obviously other non-legal but more operational issues to consider about that, particularly with working from home. A lot of businesses are struggling with the fact that you need, you know, do you have the IT support capacity to deal with the huge sudden increase in working from home? So you know, there are operational issues around that as well. From the legal perspective, you need to first determine whether there are any specific restrictions on the change you want to make in employment standards legislation. Again, there's a different legislation in each jurisdiction and the restrictions vary. If there are no restrictions or whatever you're going to do complies with that statutory restriction, then generally speaking, if it's something that your employee has requested and you're willing to kind of accommodate and accept that, so example, the employee wants to work from home, you're happy to do that, no issues with the legislation, then generally speaking, the legal risk there is going to be low because it's an agreement. Where the legal risk kind of gets higher and where you need to kind of be a bit more careful is when you're requiring it or what the law tends to call when the employer unilaterally changes a working condition. So you have an employment agreement with all of your employees, whether it's written or not, or in the case of a unionized environment, that's kind of done by the collective agreement, but in any case, it is a contract. So if you unilaterally change a term of the contract, that's normally a breach of the contract. So you need to take a look at the contract, what are the terms in it, do they deal with working hours, do they provide you with flexibility to change those hours, and kind of start there. If you don't have that contractual right and you unilaterally make the change, not only is it potentially a breach of the contract, but the legal risk is what's called constructive dismissal, which means that the employee can treat that as essentially you having fired them without cause and claim for kind of their usual entitlements upon termination. So you should be aware of that risk. If you're looking at operational changes, I'd recommend getting legal advice, particularly in the present circumstances where typically speaking right now, you're not just looking at changing the working conditions for one employee, you're doing it for large groups, right? I'll quickly move on then to leaves of absence. As you're probably aware, there are a number of regular statutory leaves that you may be familiar with already that may apply in the current circumstances, sick leave, compassionate care leave, which obviously applies when someone has to kind of take time off because they're the only one who can support someone who is critically ill, whether from COVID-19 or some other medical condition. In some provinces, there is a statutory leave that you may never have heard of before, which are called emergency leaves. And they can apply, for example, when an employer is kind of ordered to shut down their business, or even when, in some cases, where an employee is required to stay home by a health authority direction. So we're seeing that start to apply now that the governments have moved from kind of recommendations to exercising that authority to order people to stay home. So you should be aware of those as well. We're also seeing, as you've seen in the news recently, new leaves have been kind of quickly instituted across the country. More may come in the future. Again, this kind of comes back to one of the fundamental points of trying to do your best to stay up to date with all these updates as they're coming out, and in particular watching for the announcements from your federal and provincial government. As I mentioned before, kind of yesterday, as an easy example, Ontario announced a number of job-protected leaves for employees that are affected by COVID-19, the one I mentioned before being those who can't work because they have to stay home due to the school and daycare closures. The last point on that is just that with these government announcements, often we get kind of their pitch or spin on, this is what it's going to look like, this is what it is, but the details kind of are to follow. So for example, the Ontario leaves announced yesterday, we don't know all the details, so just keep that in mind that, you know, you are dealing in a rapidly evolving environment. The last topic here I wanted to – or the second last topic I wanted to touch on was temporary layoffs. Some of you may already have started on this. For those who haven't, I would guess that you've started to review and consider it. I can say that our team here has been extremely busy with this particular topic over the last week, as a number of employers are looking at getting advice on it and assistance and support through the process. From a legal perspective, the very basics of it are similar to what I was talking about in terms of changing other working conditions, so you need to first look at the statute, what are the statutory restrictions, they kind of set the baseline, and then second, what are your contractual or common law obligations in relation to specific employees. So first, check your legislation in your applicable jurisdiction. For temporary layoffs, there are some issues you're going to want to consider, like first, does your jurisdiction require advance notice of temporary layoffs? If it normally does, you want to also know, okay, are there exemptions from that that could apply to the present circumstances. In many jurisdictions where they require advance notice, there are exemptions, or at least exemptions that could apply, and you should obviously get legal advice about whether they apply in this particular situation, but I can say all the Atlantic provinces normally require advance notice of layoffs, but at least in Nova Scotia, New Brunswick, and PEI, there is an exemption that may at least arguably apply, and that many employers are going to be looking at to consider whether they actually require giving notice. A second consideration is, does your jurisdiction require the notice of temporary layoff to be in any specific form? So if there is kind of a requirement that it has to look or say a particular thing, you want to make sure you comply with that, otherwise it can invalidate the notice. An easy example, this is Alberta, has kind of an unusual requirement that you have to include with the notice a copy of part of the employment standards legislation that applies to temporary layoffs. A third consideration is, does your jurisdiction have a statutory limit on how long a temporary layoff can last before it's deemed a termination? So kind of a hard cap on how long a temporary layoff can last. And in jurisdictions where there is one, you know, be aware of, okay, are there ways to increase that maximum, and if so, what do we have to do to be able to do that? So again, to give you examples, the Atlantic provinces don't have any statutory cap in terms of how long a temporary layoff can last. In other provinces, they do. In Ontario, for example, the maximum starts at 13 weeks in a 20-week consecutive period. However, if you meet another statutory condition, it can be longer, all the way up to 35 weeks in a 52-week period or a one-year period. There are a number of options in Ontario of when you can meet that statutory condition to have a longer layoff. A very common one is benefits continuation, but again, these are very specific requirements. They have to be done in a very specific way. You should consult legal to get kind of advice on how to properly execute that. But yeah, so I think, you know, a key point there, again, I just want to flag these issues from you, but make sure you are kind of getting input from legal, whether that's your in-house counsel or external counsel. Second, once you've gone through the statute, again, you're back at, okay, even if the statute says it doesn't violate the statute to do this, it doesn't mean you have a contractual or common law right to do it. It could be considered a breach of the contract to do it, and then you may have a risk of constructive dismissal. Again, so a temporary layoff is a key area to make sure that you are getting legal input and advice in terms of how you're going to proceed with that before you make the business decision, okay? At the end of the day, we are, as I said, in unprecedented times, so you're going to have to make difficult business decisions. Just make sure you get that input and advice to the extent possible before making those big decisions. We're running a little short on time, and I want to make sure we have time for questions, so I'll be very quick on the government programs and benefits, which is the last topic before we jump into kind of whatever questions you may have. Obviously, EI benefits, I assume everyone's familiar with these. They're not new. Obviously, there's just going to be a huge volume of EI benefits paid out and claimed in the coming weeks and months. A big question we get for the second bullet point there, employer top-up. Some employers are trying to figure out, well, if we have the financial ability to, can we assist our employees that we've laid off or are otherwise experiencing an interruption in earnings? Is there ways we can help them? You can top-up EI. You cannot just pay it directly, okay? You have to make sure you do it the right way, because if you just pay it out, it'll either delay or just reduce their EI entitlements, okay? You have to do a top-up plan. You have to register it with Service Canada. It's called Supplementary Unemployment Benefit Plan, sometimes called a sub-plan. If you do that, you can top them up to a total of up to 95%, okay? As of very recently, the federal government just announced the new Emergency Care Benefit and Emergency Support Benefit. This isn't necessarily something that you as the employer have to deal with, but sometimes it's nice to be able to kind of point your employees to this just if they have questions about it. Ultimately, they are government benefits, so they should be dealing with the government in relation to these. It's good to know, though, if you're telling them who to contact. For these new ones, it's the CRA, not Service Canada. CRA is administering these benefits. They apply through the CRA, and in very short, these benefits kind of provide additional EI-type benefits that apply to situations where essentially employees otherwise wouldn't be entitled. For example, a worker who is quarantined or taking care of a family member who is sick with COVID-19 but not otherwise entitled to EI, some examples of that would be, in some cases, an independent contractor. In other cases, it might be that they don't have sufficient insurable earnings to qualify, okay? There have been some new tax changes that are announced. In particular, some kind of common ones we're seeing is for – to support, again, families and those with children. And in addition to the federal ones, we are seeing various provincial programs and benefits and, in some cases, tax cuts cropping up in the provinces across Canada. So I think I'll try and wrap up on that to make sure we have some time for questions. You know, the last bullet point there, more to come. Obviously, as I've said throughout here, we're in a very quickly and rapidly evolving situation. Keep up to date. There are some more government programs and benefits that are announced in the coming days that may be helpful to you, your employees, or your business. Various governments have indicated that they will be trying to support employers or companies as well. So good to keep up to date on that, okay? So that's everything I wanted to make sure we kind of covered today at that point. Liz, I'm not sure if you're still on the line there, but I guess we can open it up to any questions that have come in through the webinar. Sure. So let's start with this first one. If a province shuts down all non-essential services, do employees qualify for sick leave? This came up a lot yesterday. We've got some members that operate in both the U.S. and Canada. So if the government shuts down, do they qualify for sick leave benefits through EI? Yeah. If the province shuts down all non-essential services. Yeah. So my expectation is that employees would generally be entitled to EI benefits. It could either be regular EI benefits or sick benefits. Essentially, it depends on what triggered their original interruption of earnings. So if they first stopped, kind of lost their basis for income because they got sick before that, then they would be on sick benefits. If it was not because of that and this is what triggered their interruption of earnings, it's just kind of regular EI benefits. Again, there is kind of eligibility criteria for people to be eligible for EI. For example, they have to have a certain amount of insurable earnings. That's something that's worked out between Service Canada and the employee. You're not involved in that process. But as I mentioned, just very recently, the federal government has announced these additional benefits, the emergency care benefits and emergency support benefits that kind of expand the criteria. So again, when employees are not entitled to EI, they can go to CRA and apply for these kind of similar replacement-type benefits. Okay. Next question is, do the regular EI benefits still have the two-week waiting period? Yeah. So this is a common question. So the regular waiting period now is actually one week. It used to be two weeks a couple of years ago. That changed a couple of years ago. And then the other common question is that the federal government announced, I think about a week ago now, a waiver of that one-week period. To my knowledge, and I think where we are today, and this could have changed while we were on the call, but as of where we're at right now, that waiver, my understanding, is only for those who are quarantined or sick with COVID-19. It does not apply to regular EI benefits. So for example, due to a temporary layoff or termination, currently, my understanding is that that one-week waiting period still applies in those circumstances. Okay. Are there any other questions? If not, Killian, thank you so much for joining us this afternoon. And if our members have any questions, we will be sure to reach out to you. Perfect. Okay. Thank you so much for having me on. And obviously, I just want to make sure to wish everyone a healthy and safe next few weeks. Oh, sorry. One more, Killian, if you've got a minute. Can we trade off laid-off time between team members to limit the impact? Yeah. So, I mean, I think the answer to this will kind of depend on exactly what you have in mind. So I'd recommend getting specific legal advice. One risk is that if you're kind of bouncing around who you're laying off at different times, you're kind of expanding your legal risk if you've now kind of, instead of, you know, potentially have a legal claim from, you know, X number of employees, you've expanded to all of them or to a greater proportion. I don't know if one of the ideas behind this question, and I'll just go back a slide, is the Federal Work Sharing Program, which I've mentioned, but this is one that was in the news recently because the federal government expanded basically how long these benefits can be eligible. But essentially, very briefly, this program is set up for employers to try and avoid layoffs. And the idea is that everyone agrees, and when I say everyone, the employees actually have to agree as well. So everyone agrees to reduce hours as opposed to kind of reducing the workforce and only laying off part of the workforce. So everyone's hours would get reduced by a certain amount. And the benefit of this program is that the federal government actually chips in to kind of, obviously, you're not going to be paying employees their full kind of complement of hours if they're only working a reduced number. The federal government then kind of tops that up to closer to whatever their normal earnings would be. So that is another program that's available to dailies to explore to see if it fits your circumstances, if that's kind of what you have in mind in terms of the kind of rotating layoffs, I think was the way it was phrased. All right, well, thanks again, Killian. We really appreciate it. Okay, no problem. My pleasure. Hope everyone has a nice weekend. Thanks. You too. Thank you.
Video Summary
In this video transcript, labor employment lawyer Killian McParland from Stuart McKelvey discusses the legal issues related to employment during the COVID-19 pandemic. He highlights that employers have an obligation to protect their workers and should follow the guidelines provided by medical experts. McParland also discusses the legal considerations for changing working conditions, including working from home and reducing hours of work. He explains that employers need to review the employment standards legislation in their jurisdiction and also consider contractual obligations. Temporary layoffs are also discussed, with McParland advising employers to consult legal counsel to ensure compliance with the law. He also mentions government programs and benefits such as EI benefits, employer top-ups, and new emergency leaves that have been introduced to support workers during the pandemic. McParland emphasizes the importance of staying up to date with government announcements and seeking legal advice to navigate the rapidly changing situation.
Keywords
labor employment lawyer
COVID-19 pandemic
worker protection
changing working conditions
employment standards legislation
temporary layoffs
government programs
legal advice
×
Please select your language
1
English