During this very difficult and uncertain time, more and more employers are wondering what they should keep in mind, from an employment law perspective, when making business decisions. Six points employers in Ontario should keep in mind during the COVID-19 pandemic are set out below.

Internal Documents

An employer should always carefully review its employment contracts, policies, procedures, and agreements in order to determine if there is anything that specifically addresses leaves of absences and lay-offs. Be aware that these internal workplace documents can be modified by any new legislation that may be brought in by either level of government during the crisis.

Applicable Legislation

Ontario’s Employment Standards Act, 2000 and the Canada Labour Code set out the minimum requirements and standards for the workplace, for example, leaves of absence. There are leaves of absence entitlements set out in these Acts, specifically applicable to employees who are sent home for reasons of illness and caring for those who are ill. The Occupational Health and Safety Act requires employers to keep employees healthy and safe and allows employees to refuse unsafe work. The Ontario Human Rights Code sets out numerous grounds on the basis of which employees cannot be discriminated against, for example, disability, family status, country of origin. No decisions made in the workplace can be based on these factors without further investigating if it will be in breach of the Code. Familiarize yourself with the provisions of these pieces of legislation.

Privacy

Employers should also keep in mind privacy laws that address and limit the disclosure of personal information. In Ontario, most workplaces have no legislated privacy requirements with respect to an employee’s personal information, unless it is health information. Some workplaces in Ontario are under federal jurisdiction, and are subject to legislated privacy requirements for any employee information. There are also legal obligations outside privacy legislation to ensure an employer does not impact a person’s privacy. Be cautious and sensitive to employee health information when sending out communications to the workplace.

Mandatory Leaves of Absence/Temporarily Shutting Down/Lay-offs

If employers require their employees to work from home, the employees must be paid while working from home, for the hours they are working. For employers who willingly or are required to impose a mandatory leave of absence, payment to employees will depend on their existing employment contracts, policies, past practices, and agreements with their employees. Laying-off employees should be done in accordance with the the relevant legislation (the Employment Standards Act, 2000 or the Canada Labour Code in Ontario). Employers should issue an ROE to the employees who are laid-off because they are experiencing an interruption in their remuneration. In a lay-off situation, or where an employee’s income is reduced, an employee can claim a constructive dismissal (unless contractual provisions state otherwise) because there is no common law entitlement to a lay-off, despite the fact that an employer is legally able to lay-off employees under the Employment Standards Act, 2000. However, there are possible defenses to a claim of constructive dismissal (such as frustration of contract) and there could possibly be some upcoming legislation that will minimize any damages should an employee bring a claim – that is to be seen.

For Employees Who are Ill with COVID-19

These employees have access to any earned, paid sick days an employer provides, group or personal Short-Term Disability benefits, and EI benefits (for which the waiting period has currently been waived ). Employees may also take an unpaid leave of absence or use earned vacation pay. The government may also offer additional assistance/benefits to these individuals as we go forward. Employers can choose to modify or loosen their policies to assist employees in this situation. Employers should also consider waiving any requirements for sick notes to satisfy their internal policies, in order to relieve some burden on the health care system.

For Employees Who are Taking Care of a Sick Family Member or Self-Isolating

These employees have access to any earned vacation pay. They may also take an unpaid leave of absence. Employers can consider allowing them access to their sick day availability. Again, the government may also offer additional assistance/benefits to these individuals as we go forward.

A lot of employers will have some difficult decisions to make in the weeks ahead. Our team at Harrison Pensa is here to help if you have any questions about your specific situation.


Mana Khami is a partner at Harrison Pensa and one of the company’s most active community contributors. Mana provides practical advice and careful guidance to individuals, corporations and municipalities on a wide range of legal topics. Connect with Mana on LinkedIn.