Return-to-work refusal may cut off CERB, EI

Separating fact from fiction on workers’ rights

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no obligation to allow you to work from home.

Workplace Law

Myths, reinforced by wishful thinking, abound in this era, in which the government is handing out free money like candy on Halloween.

So what are the most common misconceptions that are presently abound?

Myth: I am able to work efficiently from home, so my employer has to allow me to.

Reality: While social distancing is encouraged and working from home is an effective social distancing measure, employers have no obligation to allow you to work from home, including during the pandemic. It does not matter a whit that you can prove that working from home is equally productive.

Myth: My employer is allowed to lay me off or reduce my hours because of the virus. Reality: Unless layoffs are a term of your employment contract, your employer has no right to lay off a non-union employee. A layoff or significant reduction in hours or pay is a constructive dismissal. You can agree to a layoff, but if you do, make sure you specify that you are doing so only under these exceptional circumstances and do not consent to layoffs becoming a regular practice in the future.

Otherwise, the employer can do it again with impunity. Myth: I can get the CERB if I earn less than $ 1,000 per month even if my work hasn’t changed as a result of the virus.

Reality: The CERB is intended for those who have stopped work in some capacity due to COVID-19. If you earned less than $ 1,000 per month previrus, you are not entitled to collect the CERB now.

Myth: If my employees ask for a leave or refuse to return to work because of the virus, I have to allow it.

Reality: Assuming your workplace is safe, unless your employee requires an accommodation on the basis of a disability (which includes illness and being sick with COVID-19) or family status or your employee is otherwise entitled to an emergency job- protected leave under employment standards legislation, you do not have to approve a leave request or allow them to stay home. In fact, if they refuse to return from a layoff, you are entitled to consider them to have resigned. Myth: I can’t get any benefits because I am not a Canadian citizen.

Reality: Many benefits, including the CERB, are available for those who reside in Canada irrespective of their citizenship status.

Myth: If I think my workplace is unsafe, I have the right to stay home.

Reality: While you have the right to refuse work that is objectively unsafe, it is not your opinion that matters. Rather, a Ministry of Labour Inspector must make a determination on whether your workplace is safe. You can refuse to work while their investigation is ongoing, but if they deem your workplace to be safe you must either return or quit.

And now on to the questions I received recently.

Q: Earlier in the pandemic my employer let me take a leave of absence. Now they want me to come back. I am afraid of the virus and want to stay home because I have a baby, my husband is working from home, and there are two seniors in our household, but my employer says I don’t qualify for job protection. Can I be fired if I don’t come back?

A: Your employer is correct. Your fear or worry about COVID-19 does not entitle you to the new emergency job- protected leaves, and given the number of people at home who could care for your child, you are also not entitled to job protection on that account.

If you refuse to go back to objectively safe work ( i. e. a Ministry of Labour Inspector has certified that your workplace is safe) when you are recalled, your employer is entitled to fire you or to consider you to have quit your job. This not only means you won’t have a job to go back to when the dangers associated with the pandemic lift, but also that you would also be ineligible for individual government benefits like EI and the CERB in the meantime. Q: My husband accepted a voluntary termination back in February, planning to find another job right away. He received severance pay. Now, he can’t find work because of the pandemic and he has to be at home to look after our children while schools are closed. Can he apply for the CERB even with the severance pay he received?

A: While the government has now clarified that receiving severance pay does not impact entitlement to the CERB, your husband is, unfortunately, likely ineligible for other reasons. Based on the timing, it sounds like your husband agreed to leave his job for reasons unrelated to COVID-19, meaning he cannot apply.

However, depending on the reason listed for his termination on his record of employment, he may become eligible for regular EI when his severance period ( i. e. the number of months’ salary his severance payment represents) ends.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.