The ramifications of the current COVID-19 pandemic are being felt across all industries as the fallout from the spread of the virus has led to a significant upheaval of the regular daily business operations for companies around the world.
Healthcare professionals continue to recommend the implementation of social distancing and self-isolation measures, and government at all levels have taken steps to shut down non-essential services and limit public gatherings. As the number of confirmed cases around the world continues to rise, the extent of the damage caused, and the total impact of the disruption remains to be seen.
In circumstances such as these, it is imperative that businesses be able to respond to the market, properly adjust their operations, and implement an effective plan to safeguard their long-term economic future. One of the key areas where such a plan will be required is in dealing with your workforce in such a way that permits the flexibility required to navigate these uncertain waters, while also respecting your employee’s rights and your obligations to them.
Providing a Safe Work Environment during a Pandemic
One key consideration all employers should keep in mind is their obligation under the Ontario Health and Safety Act to ensure that they provide a safe work environment for their employees. This means taking active steps to reduce the risk of the virus spreading in the workplace. To that end, employers can limit in-person meetings, encourage employees to work remotely where possible, increase the frequency of regular cleaning and disinfecting operations, remind employees about best practices to reduce the spread of the virus (wash your hands, do not touch your face, etc.), and provide additional sanitation products where available.
Adapting to the needs of each workplace will depend on factors unique or specific to that workplace. Adapting to the needs of your employees will also require unique consideration be paid to each employee, and their work environment. Special care and extra precaution must be taken to adequately protect vulnerable employees.
Options for Dealing with your Workforce
Employers are encouraged to review the employment agreements or collective agreements they have in place with their employees, as these contracts will inform the options available to employers seeking to implement changes to the employment relationship.
Voluntary Measures for Employees
Employers are encouraged to communicate directly with their workforce to try to come to voluntary, workable solutions for the realities facing their workplace. If possible, employers can seek to negotiate temporary agreements to reduce pay, reduce or alter working hours, enter furlough or temporary lay-off agreements, or design work-sharing agreements. Any voluntary agreement entered into between an employer and their employees should be captured in writing and should involve the employer providing some form of consideration to the employee for the implemented change in the employment relationship. Be sure to reach an agreement before imposing changes to wages or hours, as a unilateral fundamental change to the employment relationship could lead to claims of constructive dismissal.
Temporary Lay-Offs and Declared Emergency Leave
A lay-off occurs when an employer temporarily cuts back on or halts an employee’s work without terminating the employment relationship. Under Ontario’s Employment Standards Act employers are permitted to temporarily lay-off employees for up to 13 weeks in a 20-week period, or for more than 13, but less than 35 weeks in a 52-week period, under certain conditions. Be sure to consult your collective bargaining or employment agreements to ensure that you are not bound by additional considerations in laying off employees.
If your business was deemed non-essential and was forced to close or suspend operations as a result, then your employees may qualify to take an unpaid emergency leave and apply for employment insurance benefits. Employees on layoff are also entitled to EI benefits, so employers must be sure to denote the proper reason for the work stoppage on an employee’s Record of Employment.
Work Sharing Arrangements
If your workplace has remained open but has seen a notable decrease in demand or possible output, then a work-sharing arrangement may be beneficial. Under such arrangements, employees agree to reduce their workweek by as much as 60% in order to share the work available among the greater workforce. An accepted work-sharing agreement entitles employees to receive employment insurance benefits to supplement their reduced earnings from the compressed work schedule. The federal government has recently bolstered its work-sharing program in response to COVID-19, allowing for extended agreement durations, and waiving waiting periods between agreements.
If more permanent restructuring options are required, employers maintain the right to terminate employees with notice or pay in lieu thereof, and subject to any additional conditions spelled out in the employees’ employment agreement, and the Employment Standards Act. While there are cases in which the termination of an employment relationship becomes the only feasible option, employers should pay special consideration to the effect of the current environment on the prospective job market, and assess how that may impact the interpretation of an adequate notice period for the termination.
Managing a Reluctant Workforce
Employees have a right to refuse unsafe work and may seek to invoke that right over concerns of contracting COVID-19 in the workplace. As mentioned above, it is the employer’s duty to provide a safe work environment for all of its employees and to take active steps to combat the risk presented by the virus. Where an employer feels they have met this obligation, however, they are entitled to expect their employees to continue working and continue satisfying their obligations under the employment contract. Where concerns are raised by an employee, the employer should inspect the issue, evaluate the risk, and take action where needed to remedy the situation. An employee is not justified in refusing to work where there is no risk to their health and safety.
Another area of concern for employers relates to increased numbers of employee absences during the pandemic. Such absences may be excused if the employee is eligible for leave under the declared emergency, or infectious disease emergency provisions of the Emergency Management and Civil Protection Act and Employment Standards Act.
With respect to absences specifically related to COVID-19, any employee who is under an order to quarantine or to self-isolate, who is responsible for providing care to family members who are ill or under quarantine or orders to self-isolate, or who are responsible for attending to childcare due to the closure of schools and daycares are entitled to an unpaid leave of absence. Employers are not permitted to ask for a doctor’s note confirming the illness, however, they are entitled to ask for some proof of the requirement for the leave that is reasonable in the circumstances.
As the long-term repercussions of the pandemic and the measures enacted to counter its spread become more apparent, employers will need to assess the efficiency of their workforce, and enact strategies to sustain the future of the business. It is important that employers respect the rights of employees during this process, and reduce the likelihood of unwarranted or improperly executed turnover. Equally important will be managing employees who return from leave once the threat of the pandemic has passed. Contact us today to find out more about what your options are, and how to put them into action. The above article has been prepared for informational purposes only and is not designed to be legal advice. If you are an employer or an employee and have questions about how your job or your workplace is affected by the recent changes, or about what steps you can take to protect yourself, then please reach out to one of our experienced employment lawyers who can give you advice tailored to your specific situation.