What Ontario Employers Need to Know About COVID-19
Author: Patty Young ~ CHRL, CPB
As the pandemic evolves, we continue to see various employment laws and government programs changes that impact how Ontario employers manage their workforce.
Unfortunately, there is no single source to get all the answers to how businesses can navigate these challenging times. In this article, I hope to provide insight into some of the more critical employment and HR factors related to COVID-19 and the impact on small businesses.
We will discuss the potential risks and key considerations in the following areas:
- Temporary Work Force Reductions
- OHSA: Work Refusals
- Workers Compensation
- Human Rights
- Economic Relief Programs for Businesses
- Face Mask Bylaw
Temporary Work Force Reductions
On May 29, 2020, the Ontario government made substantial changes to the Employment Standards Act, 2000 (ESA), when they introduced the Infectious Disease Emergency Leave regulation. This new regulation will remain in effect from March 1, 2020 until six weeks after the declared emergency in Ontario ends (COVID-19 Period). The new regulation affects how termination, severance and constructive dismissal rules are applied during the pandemic for non-unionized employees.
Key Considerations About Temporary Reduction in Work Force:
- The ESA considers any significant change to the fundamental terms or conditions of an employee’s employment without the employee’s consent constructive dismissal. For example, significantly reducing an employee’s hours of work or wages would typically be considered constructive dismissal. Under the new regulation, an employee is not considered to be constructively dismissed if their hours or wages are temporarily reduced for COVID-19 reasons.
- During the COVID-19 Period, employers do not have to terminate employees that are laid off for more than 13 weeks—the employer’s financial burden of paying out termination, and severance payments are deferred.
- After the COVID-19 Period, if the employer still is unable to reinstate the employee, then termination payments must be paid.
- For more information about the temporary relief from ESA termination and severance provisions, this is an article from Hicks Morley provides more details.
OHSA: Work Refusals
The Ontario Health and Safety Act (OHSA) gives an employee the right to refuse unsafe work that endangers their health and safety.
Key Considerations About Work Refusals:
- Employers are required to keep their employees and workplaces safe and free.
- Under OHSA, an employee can refuse work if they fear contracting COVID-19 at work.
- Employers must investigate all complaints as required under the OHSA.
- Employers can not discipline an employee who refuses to work for health and safety reasons.
- The Ministry of Labour is continuing to investigate all complaints received as required under the OHSA.
For more information about employers’ responsibilities and how you can protect your workers, the Government of Ontario has created this COVID-19 and Workplace Health and Safety resource.
A worker who contracts COVID-19 in the workplace may be eligible to claim under WSIB.
Key Considerations About Workers Compensation:
- Employers are obligated by law to report any workplace injury or illness to the WSIB.
- Don’t discourage, discipline, or block an employee from submitting a claim regardless of whether you feel the claim is a legitimate work-related illness.
- Typically, under the Act, the infection must be an ‘occupational disease’.
- WSIB will adjudicate each claim on a case-by-case basis Here are their current claim statistics by industry and sector for COVID-19 claims.
- Employees working from home can apply for WSIB if their injury is work-related.
- A quarantined employee who symptom-free is not eligible for WSIB during the period of self-isolation.
The Ontario Human Rights Code protects people against discrimination, whether perceived or otherwise, this includes a person with a disability. Ontario Human Rights Commission (OHRC) created a statement entitled OHRC: Policy Statement on the COVID-19 Pandemic as a guide for employers.
Key Human Rights Considerations:
- The OHRC considers COVID-19 a “disability” because of the “significant social stigma” associated with contracting the virus.
- Any adverse treatment of employees who have or are perceived to have COVID-19 is considered discrimination.
- Employers must accommodate an employee with COVID-19 up to the point of undue hardship. An example of reasonable accommodation would be allowing an employee to miss work to care for their child, who is not at school because of the pandemic.
- Sick policies must not negatively affect employees with the virus. An employer can not discipline or terminate any employee who is unable to work due to COVID-19.
COVID-19: Economic Relief Measures
The federal and provincial governments across Canada continue to offer economic support for individuals and businesses. These programs are too numerous to mention in this article. You can find current information about all the programs available across Canada at the McCarthy Tétrault LLP website under their COVID-19: Economic relief measures announced to date article.
Face Masks Bylaws
Masks have been made mandatory in many of the cities and municipalities in Ontario. In the Greater Toronto Area (GTA), the following regional municipalities have passed temporary bylaws mandating that the public wear masks:
Business owners and operators of indoor establishments that are openly accessible to the public are required to:
- Create a face mask policy for their establishment. The policy does not have to be posted, but a copy may be requested by a registered bylaw officer upon inspection.
- Train employees on policy and bylaw. The training should include a list of people exempt from the bylaw, and how the establishment is going to handle these exemptions.
- Post bylaw signs at all entrances into the establishment.
You can obtain specific municipality requirements, sample policies and posters from the links provided above.
Key Considerations about Mask Bylaw
- Indoor establishments affected by this bylaw must not discriminate against customers and employees who are exempt. Refusing to accommodate an employee with a medical condition or refusing to serve an exempt customer could put your business at risk of receiving a discrimination complaint for reasons explained above.
- Only bylaw officers can issue fines to individuals not following the mandatory mask bylaw.
These new regulations have changed how we manage our workforce during the pandemic and in the future.
Now would be a good time to review and update your policy wording, especially those policies related to working remotely, sick leave, temporary lay-offs and workplace safety policies. To assist you, we have updated our “Ontario Employee Handbook Checklist,” which sets out the mandatory policies, best practices and new requirements for small businesses.
If you have any questions or would like to discuss any of these issues, please email me at firstname.lastname@example.org or call 905-409-7225.