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COVID-19: Employee and Employer Rights

The COVID-19 pandemic unprecedented. Gilbert Barristers & Solicitors has been receiving many calls from employees and employers asking about how the COVID-19 pandemic has affected their rights. They include questions about occupational health & safety, human rights, terminations and layoffs.

To assist in navigating these uncharted waters, we provide free consultations for COVID-19 related employment issues by calling us at 1-866-720-2245 or completing this form.

Can my employer just lay me off during the COVID-19 pandemic?

Short answer is no. A layoff is a constructive dismissal, unless the employee's contract expressly provides for it, you are Unionized, the employee agrees to being laid off, or an employee that entered into their employment contract with the anticipation of being laid off occasionally, such as a seasonal worker. In order to effectively answer the questions, we would need to review your individual circumstances.

If you have questions, we provide free consultations for COVID-19 related employment issues by calling us at 1-866-720-2245 or completing this form.

What happens if there is a state of emergency and my employer is forced to close down?

If an employee is unable to perform his or her employment duties because of a state of emergency pursuant to the Ontario Emergency Management and Civil Protection Act, then the employee is entitled to unpaid leave under s. 50.1 of the Ontario Employment Standards Act, 2000.

The Declared Emergency Leave or Infectious Disease Emergency Leave cover both workers in industries that have been effectively closed and/or their spouse; a parent, step-parent or foster parent of the employee or the employee’s spouse; a child, step-child or foster child of the employee or the employee’s spouse; a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse; the spouse of a child of the employee; the employee’s brother or sister; or a relative of the employee who is dependent on the employee for care or assistance.

The employee will need to advise the employer that he or she will be opting for leave under s. 50.1 of the Ontario Employment Standards Act, 2000. The employee should continue to receive employee benefits during their leave. The leave ends on the day the emergency is over. The employer cannot punish the employee, and the employee should return to work once the emergency is over.

It must also be noted that an employee may not be able to claim for damages if the courts are of the view that the contract was frustrated as a result of the pandemic, and therefore the employee will not be entitled to claim damages from the employer for the said period.

If you have questions, we provide free consultations for COVID-19 related employment issues by calling us at 1-866-720-2245 or completing this form.

Can my employer reduce my pay or hours during this COVID-19 pandemic?

Unless the employment contract expressly provides for a reduction in hours or pay, then an employer cannot reduce your hours or shifts. Courts have found that a 14-17% decrease in pay or hours can be construed as a constructive dismissal.

It must also be noted that an employee may not be able to claim for damages if the courts are of the view that the contract was frustrated as a result of the pandemic. This can happen when the government forces a business to shut down. Therefore the employee will not be entitled to claim damages from the employer for the said period. The employee would be entitled EI benefits.

With an employee’s consent, an employer can reduce an employees hours or pay. Consent should alway be in writing and the language should be clear and unequivocal.