COVID-19 Questions & Answers

Question: I own a small business which is in the personal service industry. Unfortunately we are already being impacted by the pandemic. It is clear that things are going to get worse before they get better. I have some very long term employees who have never been before laid off. If I lay them off as a result of a shortage of work, are they going to be able to claim that I constructively dismissed them?

Answer: Probably not and they likely will not even try. That would not normally be my answer but right now it is. The Employment Standards Act says that if you lay somebody off without benefits for more than 13 weeks or with benefits for more than 35 weeks it becomes a termination. Sometime ago, however, the courts said that those Employment Standards Act provisions only apply to employees where it is an implied or explicit term of their Employment Contract that they can be laid off without notice. Otherwise it’s a termination. While the Ministry of Labour still ignores that case law it is in fact the law of Ontario. Even in good economic times, employees don’t often pull the trigger of claiming a termination. If you happen to have an employee who is about to retire or go work somewhere else, they might try to claim termination because they have nothing to lose. Most employees, however, will be hopeful that things get better and that they will be called back to work. If they take the position they have been terminated that recall becomes extremely unlikely. Unfortunately, in these times it’s not like there’s going to be a lot of other jobs to jump to. If they do try to claim a termination and end up before a judge they are going to face a difficult argument. There is a big difference between laying somebody off as a result of a pandemic nobody could have predicted and laying somebody off because you let a competitor get the better of you and lost a big client. Gradual economic slowdowns are far more predictable and the employer is expected to plan ahead and give advanced notice of changes to the employment relationship. Sudden pandemics that change the economy within he span of a few weeks are not predictable. I believe that if a judge can find a way to deny the claim for termination she will. It is hard to claim you are a victim when everyone else is in the same lifeboat with you.

Question: If I have to self-isolate as a result of this virus, will the private corporation I work for have to pay me for the time off?

Answer: The answer used to be that you would get at least 2 paid sick days but Doug Ford took those away. There is no law requiring employees to be paid for time off work. If you are in a unionized position there will likely be something already negotiated. Many non-unionized companies provide a certain amount of paid sick days to employees for each calendar year. It is likely your employer will let you use those sick days. The employer may also let you use your accumulated vacation time. Other than that there is no obligation for the employer to pay you. Usually there would be a one week waiting period for Employment Insurance Sick Pay but that is being waived for people who are quarantined. Please take a moment to think about people working in the hospitality industry. Only their insurable earnings, their wages, are used in calculating their Employment Insurance entitlement. They live, however, mostly on their tips. This is going to be very tough for them. Finally, thank you to every cashier everywhere. You are heroes.