Can I refuse to attend work and still collect CERB?
Over the past few weeks, I have received an unprecedented number of inquiries from employees about their eligibility for employment insurance and the new benefits being hastily rolled out by Ottawa.
The most common and revealing question relates to whether an employee has the option to continue working rather than be laid off.
Q Can employees refuse to attend work on health and safety grounds and still collect the new government income programs?
A While we can only speculate on the answer until more claims are adjudicated, the very question exposes weaknesses in the government’s approach to income support during the coronavirus crisis.
The relevant relief for the majority of workers affected by COVID-19 is the new Canada Emergency Response Benefit ( CERB). It provides $ 2,000 per month for up to 16 weeks to those at least 15 years of age, who earned at least $ 5,000 in 2019 or in the past 12 months, and who have stopped working for at least 14 days due to COVID-19, regardless of employment insurance eligibility.
The CERB also applies to individuals who would otherwise be eligible for regular EI or sickness benefits but who have stopped working due to COVID-19. The application process opened on April 6.
The benefit is available to those who don’t have access to paid leave or other income support, including: ❚ ❚ Workers who have been let go or laid off due to COVID-19;
❚ ❚ Workers who have been asked not to come to work; ❚ ❚ Workers unable to work because they are sick, quarantined, or taking care of someone who is sick with COVID-19;
❚ ❚ Workers who can’t work because they have to care for children or other dependents whose school/care facilities are closed due to COVID-19.
There is one notable exception to CERB eligibility.
The government has been clear that workers who voluntarily leave their jobs, are ineligible for CERB. This exclusion makes sense. Why should the government subsidize workers to stay home if they could have been contributing?
But, this logic runs afoul of the spirit of some government announcements and has created considerable confusion. Specifically, there is a significant grey area for workers whose companies are prepared to keep them employed but who are fearful of attending work, as well as for those who, for whatever reason, voluntarily elect an unpaid leave or layoff when they had the option to keep working.
Many of these workers are reluctant to accept the work they have been offered because they are fearful of taking public transit, do not trust that workplace safety will be sufficiently prophylactic, feel safer or prefer working from home (which they have no legal right to insist upon), or because they are living in a household with someone who is at high risk from the virus such as elderly or immune- compromised persons.
Nonetheless, based on the CERB eligibility criteria, asking to stay home from work for any of the above reasons precludes someone from collecting the benefit. It is unclear whether accepting a layoff offered by an employer would have the same effect. If it does, and assuming the health risks to workers and their loved ones are real, those who fear these risks are put in the unenviable position of endangering themselves or their loved ones while continuing to work, or to stop working with no eligibility for individual benefits.
However, if the CERB benefits were to cover workers who accept or request voluntary leaves or layoffs, there is a concern that some will view the CERB as an opportunity for an extended paid vacation.
Especially when dealing with workers who do not earn much more than they would obtain through the CERB payment, the program is ripe for abuse and fraud.
There is good reason to permit employees who say they or their household members are endangered by the conditions of the workplace to seek the benefit of the program. Those create good basis for refusal to work in many circumstances. But there is no such verification required for access to the CERB program.
There is no requirement to submit a medical certificate in support of a CERB claim made for medical reasons, which is the case whether the claimant asserts that they themselves are ill or at risk or whether they assert that they live with a loved one who is ill or immune-compromised.
This incentivizes dishonest self- reporting. What is to stop any employee, whose employer offers no sick benefits, from falsely alleging that they have COVID- 1 9 s y mptoms, claiming that someone in their household is elderly or otherwise vulnerable to the virus, and collecting the CERB?
Given t he dearth of COVID-19 testing for mild cases thus far, it is unlikely that such a malingerer would ever be caught in any audit.
Compounding the problem, the CERB application itself only takes about five minutes to complete online and requires no supporting documentation. The only warning about the consequences of making a false application is that recipients may be required to pay the benefit back at some point in the future.
The government has been clear that its main priority is to ensure that as many people who need support as possible receive it. In other words, there appears little likelihood that there will be any probing, hence, further incentive toward false claims.
Without more guidance from the government as to what’s expected of workers and employers in relation to eligibility for support, all parties will continue to flounder in uncertainty and concerns about unfairness and abuse of the program will promulgate. Q What can I do about employees who refuse to honour social distancing?
A In the current environment, an employee who creates such discomfort and safety risks to others can, after appropriate written warnings, be fired for cause. Q Can I refuse to work because I do not want to take public transit and view that as unsafe?
A If the employer provides a safe workplace, i.e. enforces distancing, proper sanitation, protective equipment and requires your attendance, your mode of transportation to work is your concern and cannot be used as a valid reason not to attend.
Got more questions about COVID- 19 and the workplace? Feel free to email me at levitt@levittllp.com.
the new canada emergency response benefit (CERB ) provides $2,000 per month for up to 16 weeks to those at least 15 years of age, who earned at least $5,000 in 2019 or in the past 12 months, and who have stopp ed working for at least 14 days due to covid-19.