COVID-19 and the Workplace: Recent Federal and Ontario Emergency Measures

Employers are facing unprecedented times in dealing with the impact of the global COVID-19 pandemic on their workplaces. In this bulletin, Aird & Berlis’ Workplace Law Group provides guidance on recent enactments by the federal and provincial governments that apply to Ontario workplaces.

On March 23, 2020, Premier Doug Ford announced that an order will go into effect at 11:59 p.m. on March 24, 2020, that will require the closing of all non-essential businesses in the province of Ontario. The Premier clarified that the order did not mean the closure of business, but rather of facilities, and that employees could continue to work remotely. Essential services are allowed to continue their operations to maintain supply chains and make sure that Ontarians have access to groceries, medicine and other essentials. The list of essential services can be found here. The order will last at least 14 days, and is intended as an emergency escalation measure to help fight and slow the spread of COVID-19. The list of businesses permitted to remain open remains to be clarified, and we will update our clients as more information is available.

Similarly, the information contained below is subject to change as the COVID-19 pandemic progresses. We will continue to update our clients as matters develop.

FEDERAL RESPONSE PLAN

On March 18, 2020, the federal government announced the details of its Economic Response Plan. The summary of initiatives is as follows:

For Workers

i.          Employment Insurance Sickness Benefits

Effective March 15, 2020, the federal government waived the one-week waiting period for those individuals in imposed quarantine that claim Employment Insurance (EI) sickness benefits. The requirement to provide a medical certificate has also been waived for individuals claiming EI sickness benefits. 

ii.          EI Work Sharing Program

The federal government also announced changes to the existing EI Work Sharing Program, which provides EI benefits to workers who agree to reduce their working hours and share available work as a result of a downturn in business beyond their employer’s control (whether directly or indirectly related to COVID-19). These measures are as follows:

• The permissible duration of Work Sharing Agreements will be extended from 38 weeks to 76 weeks as a result of COVID-19; and
• The mandatory waiting period between Work Sharing Agreements, which must usually be equal to the number of weeks of the previous agreement up to a maximum of 38 weeks, will be waived.

iii.         Emergency Care Benefit

Commencing in April 2020, the federal government, through the CRA, will provide an emergency benefit of up to $900 bi-weekly for up to 15 weeks to the following individuals:

• Workers, including self-employed individuals, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits;
• Workers, including self-employed individuals, who are taking care of a family member who is sick with COVID-19 but do not qualify for EI sickness benefits; and
• Parents with children who require care or supervision due to school closures and are unable to earn employment income, whether or not they qualify for EI benefits.

iv.        Emergency Support Benefit

The Emergency Support Benefit will provide payments to workers who are unemployed and are not eligible for EI, in an amount to be determined.

For Employers

 Changes to the Canada Account

The Canada Account is used by the federal government to support exporters when such support is deemed to be in the national interest. The Minister of Finance will now be able to determine the limit of the Canada Account in order to deal with exceptional circumstances, to allow the government to provide additional support to Canadian companies through loans, guarantees or insurance policies. 

i.          Temporary Small Business Wage Subsidy

Eligible small employers (including corporations eligible for the small business deduction, non-profit organizations and charities) can receive a temporary wage subsidy for a 3-month period. The subsidy will be equal to 10% of the remuneration paid in the 3-month period up to a maximum of $1,375 per employee and $25,000 per employer. 

ii.          Tax Flexibility

The Canada Revenue Agency (CRA) will allow businesses to defer the payment of any income tax amounts that become owing on or after March 18, 2020 and before September 2020 until after August 31, 2020, without the accrual of interest or penalties.

For four weeks commencing March 18, 2020, the CRA will not initiate any post assessment GST/HST or Income Tax audits for small or medium businesses. The CRA will further temporarily suspend audit interactions for most businesses.

iii.         Access to Credit for Businesses through the Business Credit Availability Program (BCAP)

The Business Development Bank of Canada (BDC) and Export Development Canada (EDC) will be permitted to provide more than $10B of additional support largely targeted at small and medium businesses. 

Canada’s largest banks have been permitted to inject an additional $300B into the economy, and interest rates have been cut to 0.75%.

ONTARIO’S RECENT EMERGENCY LEGISLATION

In response to the effects of the ongoing global COVID-19 pandemic, the Ontario Legislature held an emergency session on March 19, 2020, to introduce and pass Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020.

The Bill amends the Employment Standards Act, 2000 and provides new job-protected emergency leaves for employees. Employees will be entitled to a leave of absence without pay if the employee cannot perform the duties of his or her position because of:

1. An emergency declared under the Emergency Management and Civil Protection Act or an order that applies to him or her under that legislation;
2. An order that applies to him or her made under the Health Protection and Promotion Act or because he or she needs to provide care or assistance to an individual under care under that legislation; or
3. Because of one or more of the following reasons related to COVID-19:
   • The employee is under individual medical investigation, supervision or treatment related to COVID-19;
   • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19;
   • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means;
   • The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to COVID-19;
   • The employee is providing care or support to an individual because of a matter related to COVID-19 that concerns that individual, including, but not limited to, school or daycare closures; or
   • The employee is directly affected by travel restrictions related to COVID-19 and cannot reasonably be expected to travel back to Ontario.

HEALTH AND SAFETY CONSIDERATIONS

What should employers do?

Depending on the nature of their workplace, and whether the workplace remains open, employers should consider the following measures:

• Reminding employees of best practicing to limit the spread of the disease (hand washing, sanitizing, avoiding face touching, etc.);
• Limiting in-person meetings and imposing a minimum barrier for personal space;
• Requiring all employees who have recently travelled abroad to self-isolate for 14 days, and strongly discourage all further international travel;
• Increasing frequency of cleaning and disinfection of common surfaces;
• Conducting regular Health & Safety Committee meetings (remotely if possible);
• Restricting all business travel and visitor access to the workplace;
• Requiring or strongly encouraging work-from-home arrangements;
• Requesting up-to-date information from employees, including their contact information.

What must employers do?

Assuming a workplace remains operational, under the Occupational Health and Safety Act, employers have a duty to provide a safe working environment relative to the duties expected of employees and the risks in their specific workplace. The preventative measures currently advised to meet this duty are hand, respiratory and environmental hygiene, as well as social distancing. These measures are generally acceptable for most workplaces, and personal protective equipment (e.g. masks, gloves) are not yet necessary in most situations.

Special care and attention should be paid to the unique needs of each workplace, as well as those workplaces with vulnerable employees.

What to do if an employee comes into contact with someone with COVID-19, has symptoms or tests positive?

In general, absent further guidance from the government, all COVID-19 related absences (direct or indirect) should be treated as job-protected leaves (not necessarily entitling the employee to pay).

If an employee believes they have come into contact with someone with the virus, is having symptoms or tests positive, they should be placed on a leave of absence and told to stay home for at least two weeks. The employer should provide the employee with a Record of Employment (ROE) referencing sick leave and COVID-19, which will make the employee eligible for EI benefits with no waiting period, retroactive to the first day of their leave.

In the case of an infected employee, an employer should also take measures to inform, without disclosing the identity of the infected person, to other employees with whom the infected person may have come into contact.

Employers should keep in mind that a sick employee may be eligible for short-term disability benefits, depending on the employer’s policy and/or the definition of disability within the group insurance plan.

Tough decisions in the face of slow business or forced government closure: Temporary layoffs and terminations

In these uncertain times, employers may be required to make the difficult choice to temporarily lay off some or all of their employees. Under the Ontario Employment Standards Act, 2000, a “temporary layoff” can last:

• not more than 13 weeks of layoff in any period of 20 consecutive weeks; or
• more than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks, where:
  • the employee continues to receive substantial payments from the employer; or
  • the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan (such as a medical or drug insurance plan) or a legitimate retirement or pension plan; or
  • the employee receives supplementary unemployment benefits.

Note, however, that a layoff, even if intended to be temporary, may result in constructive dismissal if it is not allowed by the employment contract.

Employers can use a Supplemental Unemployment Benefit (SUB) plan to increase their employees’ weekly earnings when they are unemployed due to a temporary stoppage of work, training, illness, injury or quarantine. Any payments under SUB plans that are registered with Service Canada are not considered as earnings and are not deducted from EI benefits. Any additional employer payments made to employees on EI that do not fall within a registered SUB plan will be subject to claw-back.

As of publication, no changes have been announced to the one-week waiting period for EI benefits to commence in the event of a temporary layoff. Reports suggest that as of March 20, 2020, over 500,000 applications for EI had been received by the federal government, representing 2.6% of the Canadian workforce.