What do you do if your employer insists on you coming into work? On March 23, 2020, the Government of Ontario released a list of 78 Essential Workplaces which are permitted to remain open during the state of emergency which has been declared for the Province of Ontario. All others must close until further notic
Under the Emergency Management and Civil Protection Act, any part of Ontario can be declared to be in a state of emergency in which case certain rules and procedures will apply which are specific to each situation. At present, there is a limit on gatherings of more than 50 people and only businesses deemed to be “Essential Workplaces” are permitted to operate. This has been done in order to slow down the rate of spread of the COVID-19 virus. If you are not an Essential Service pursuant to that list, you are not permitted to come in to work.
However, even if your workplace is listed as an Essential Service, any person who is sick and has symptoms of the infection, or reasonably suspects having contracted the infection must self-isolate and report to public health to prevent further spread.
Your rights as an employee are protected under the new Infections Disease Emergencies Bill 186, passed on March 19, 2020, as an amendment to the Employment Standards Act.
Ontario has a New Emergency Leave which specifies that employers cannot legally lay off or terminate employees who assert their rights under Bill 186.
This legislation is made retroactive to January 25, 2020.
You are allowed Leave under the following situations:
- You cannot come in to work because you are sick – you do not need a doctor’s note but your employer could ask for reasonable evidence, when available.
- You are presently in self-quarantine or self isolation
- You need to take care of your children who are not in school due to school closures
- You need to take care of a family member who is sick
- You are unable to attend work as you are limited by travel restrictions
- You are under investigation for infection or are under an Order under the Health Protection and Promotion Act.
It is important to know that your employer does not have to pay you during this Leave however your benefits should continue. In most cases, you will also be entitled to EI (employment insurance).
If you are terminated for not coming into work as a result any of the items listed above or because you are not an Essential Service as listed by the Government of Ontario, your employer will be in violation of the ESA and will be penalized accordingly. These provisions will continue to apply for the duration of the state of emergency in Ontario.
If an employee is under contract which allows for temporary layoffs, you will not be entitled to pay or termination benefits during the layoff period. But in most cases, you will be able to claim employment insurance.
Temporary layoffs can last 13 weeks in a 20 week period or less than 35 weeks in a 52 week period. If the layoff lasts longer, the employee will be entitled to termination benefits.
What if your contract does not allow for unpaid layoffs and you are laid off? In that case the employee can claim termination and be entitled to termination benefits. Even during COVID-19 and the state of emergency, employers cannot provide less than the employee is entitled to under the ESA.
Vacation & Sick Leave
Employer are allowed to specify when their employees take vacation so an employees leave could be classified as vacation. The same applies to sick leave. This is unfortunate for employees who cannot actually go on holiday during this time but is a useful way for employers to save on costs during this time.
If an employee refuses to come to work but is not eligible for Leave, the employer can docket their time away as sick days.
If an employee contracted COVID-19 at their workplace, they may also be eligible for worker’s compensation under WSIB.
If you are eligible for employment insurance, it is recommended that you apply for it. The mandatory one week waiting period has been temporarily waived. Employees eligible for Leave could also apply for sickness benefits (available for up to 15 weeks). Employers can also assist their employees during this time by increasing their EI benefits under the Supplementary Unemployment Benefit Plan.
Kesarwani Law Office remains open to assist you during this difficult time. Please contact us by email or phone and talk to a lawyer today.
Emergency Management and Civil Protection Act – https://www.ontario.ca/laws/statute/90e09#BK7
Infectious Disease Emergencies Bill –
List of Essential Workplaces –
City of Toronto COVID-19 Updates –