National Post (National Edition)
Wrongful dismissal cases will soar
Once everyone is finally back to work, it will not be business as usual. Toronto Mayor John Tory announced that physical distancing is not going away “anytime soon”.
Companies will continue to have ongoing obligations to ensure a safe workplace, which will include ensuring that employees maintain a safe distance from each other.
For many workplaces, this will require a physical redesign of their offices, particular those with communal and open workspaces. Other measures are likely to include staggering on-site shifts and work from home.
Many businesses will not recover and others have laid off employees they never intended to call back. We will see wrongful dismissal cases in numbers eclipsing what we have witnessed before.
The most important question asked right now is this: If the employer asks an employee to return to work, must they return? The answer is yes. And there is no doubt about it, unless the workplace is genuinely unsafe for that employee.
And the only way to test that is to request a Ministry of Labour inspector to determine that. If the inspector declares it safe, and the employee still does not attend, they can be fired for abandonment and lose their Canada Emergency Response Benefit and employment insurance.
The other exceptions are, of course, those who have to stay home to take care of dependents. The law has not changed in that respect. There may be cases where employees can argue that the risk of infecting someone in their household permits them legally to stay home. But as the outbreak abates and the workplace is kept safe, that argument will increasingly weaken.
The primary onus for a safe workplace remains on the employer. If they are not diligent about ensuring a safe workplace, they may face lawsuits and the Workplace Safety and Insurance Board claims from other employees who become infected or the estates of those who perish.
Workplaces and the laws governing them are rapidly evolving.
Employers should understand the risks as it’s now more important than ever for all parties to seek professional advice before agreeing to changes in the employment relationship.
Here is a selection of questions I received recently.
Q: I am a single mother of two kids. My employer is reopening soon and asking me to return to work, but I am worried about leaving my kids at home alone as their schools remain closed until September. Can I refuse to go back to work?
A: If the children are so young that they need an attendant and there is no one else in the household to care for them, you can refuse to return to work and take an emergency job-protected leave without disentitling yourself from the CERB.
Q: I returned from maternity leave in early March. Before my leave I earned approximately $2,500 per month, but due to COVID-19, my hours were reduced and I earned only $900 in my first month back at work. My employer is planning to apply to the Canada Emergency Wage Subsidy to cover my salary going forward. Am I eligible for the CERB even though
I did not stop working and my employer may collect the CEWS for me?
A: CERB recipients are now entitled to earn up to $1,000 per month while collecting the benefit, meaning that the requirement that you “cease working” no longer contemplates a total work stoppage. Because your hours and income were reduced to below $1,000 as a result of COVID-19, you would be eligible for the CERB on this basis, provided you meet the other eligibility criteria.
However, if you choose to apply, be mindful of your timing. If you collect the CERB and your employer also pays you through the CEWS during the same 4-week period, you will have to repay the CERB. You cannot collect both benefits at the same time.
Q: I work at an optometrist’s office. One of our staff has been working part-time while the office is closed. She is collecting the CERB and “banking” the hours she works until a later date. She now wants me to take all of her shifts in the event that we reopen to patients so she can stay home and continue to collect the CERB “until there is a vaccine”. I only work one evening a week and have an asthmatic son at home. Can she do this? She says the owner has agreed.
A: The owner is committing fraud by permitting your co-worker to “bank” her hours in order to collect the CERB. Your co-worker also cannot simply choose to stay home from work to collect the CERB, and you are under no obligation to take all of her shifts if you previously worked only one day a week.
Your co-worker’s plan is not only fraudulent, it is also untenable. It is exceptionally unlikely that anyone will be able to collect the CERB “until there is a vaccine”. Developing a vaccine could take a year or more, while the CERB is only available for a total of 16 weeks. Those collecting the CERB now ought to keep this in mind and should be wary of refusing work lightly — the worst case scenario is that they will have no work to return to when their CERB entitlements run out and, if they are later deemed to have been ineligible, that they will have to repay the CERB while still unemployed.
Q: Assuming that one’s workplace is safe, can an employee refuse to return to a job as they don’t have a safe way to travel to work?
A: While employers with the means to do so might consider subsidizing safer transportation methods for their employees as a goodwill gesture, the way an employee travels to work is generally their own responsibility unless their contract says otherwise. Having to take public transit to get to work is not in and of itself a valid reason for refusing to return.
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.
THE PRIMARY ONUS FOR A SAFE WORKPLACE REMAINS ON THE EMPLOYER.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.