AS THE ECONOMY OPENS UP, IF I AM RECALLED TO MY JOB, CAN I REFUSE? WILL I BE FIRED OR SUSPENDED? WHAT IS MY RIGHT TO REFUSE TO GO TO WORK BECAUSE OF THE VIRUS?

If I am an essential worker (or permitted to work at my job), can I refuse to go to work because I am concerned about getting the virus? If so, can I collect the CERB?

If your employer is:

  • maintaining physical distancing in the workplace;  
  • practicing all federally, provincially and municipally ordered and recommended health advisory containment steps, including providing adequate hand-washing facilities; and
  • ensuring not to allow entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19,  or
  • has close contact with another person identified in the above points,

then if you refuse to attend your job, but you do not qualify for an authorized, job-protected, unpaid leave of absence under Ontario’s Employment Standards Act, you run the risk of being suspended, possibly without pay, and possibly terminated for non-attendance, leaving you with no severance pay, at law.

WILL I GET THE CERB?

If you have stopped working because of COVID-19, the Canada Emergency Response Benefit (CERB) may provide you with temporary income support. The CERB provides $500 a week for up to 16 weeks.

The Benefit is available to workers:

  • residing in Canada, who are at least 15 years old;
  • who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019 and October 3, 2020;
  • who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and,
  • who have not quit their job voluntarily.

When submitting your first claim, you cannot have earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days within the four-week benefit period of your claim.

When submitting subsequent claims, you cannot have earned more than $1,000 in employment and/or self-employment income for the entire four-week benefit period of your new claim.

WHAT LEAVES OF ABSENCE COULD I QUALIFY FOR TO AVOID RETURNING TO WORK?

If your employer is regulated by Ontario, as most are (except for banks, communications, transportation, etc.), you must qualify for one of Ontario’s legislatively approved leaves for a job-protected, but unpaid, leave of absence, such as the new Infectious Disease emergency leave. 

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by Ontario’s Employment Standards Act.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

The only disease for which infectious disease emergency leave may be taken at this time is COVID-19. Although the Employment Standards Act was amended to include infectious disease emergency leave on March 19, 2020, the leave entitlements for COVID-19 are retroactive to January 25, 2020. 

HOW DO YOU QUALIFY FOR THE INFECTIOUS DISEASE LEAVE?

Employees can take infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. the employee is under individual medical investigation, supervision or treatment related to a designated infectious disease.The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country;
  2. the employee is following a COVID-19 related order issued under section 22 or 35 of Ontario’s Health Promotion and Protection Act;
  3. the employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued by:
    1. a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health;
      • a medical officer of health or an associate medical officer of health; and/or
      • an employee of a board of health;
    2. someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak);  
    3. Telehealth Ontario;
    4. the Government of Ontario or Canada;
    5. a municipal council in Ontario; and/or
    6. a board of health.

The information or direction may be issued:

  • to the public (in whole or in part);
  • to one or more people; and
  • through any means, including print, electronic or broadcast (for example, television or radio)
  1. the employee is under a direction given by his or her employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.

For example, this would include the employer directing the employee to stay at home for a period of time if the employee has recently travelled internationally and the employer is concerned the employee may expose others in the workplace to a designated infectious disease;

  1. the employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • 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 child who is under legal guardianship of the employee or the employee’s spouse 
    • a brother, step-brother, sister or step-sister of the employee
    • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
    • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
    • a son-in-law or daughter-in-law of the employee or the employee’s spouse
    • an uncle or aunt of the employee or the employee’s spouse
    • a nephew or niece of the employee or the employee’s spouse
    • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
    • a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

This includes an employee taking leave to care for their child whose school or day care was closed because of a designated infectious disease (in this case, COVID-19).

Examples include:

  • an employee who is providing care to an aunt who is sick with COVID-19
  • a babysitter who is in quarantine or isolation because of a designated infectious disease, or is sick because of it
  • a summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of a designated infectious disease
  • an employee’s 10-year-old brother, who was visiting the employee from another city without his parents, was unable to return home because of travel restrictions imposed to prevent the spread of a designated infectious disease

The employee can be providing the care or support in Ontario or in another province, territory or country.

  1. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employees travel back to Ontario is affected.

This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

WHAT ARE MY RIGHTS DURING MY LEAVE?  

Employees who take infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking an infectious disease emergency leave.

WHAT OTHER LEAVES OF ABSENCE AVAILABLE TO ME?

There are different types of leaves under the Employment Standards Act, including:

  • sick leave
  • family responsibility leave
  • family caregiver leave
  • family medical leave
  • critical illness leave
  • bereavement leave
  • declared emergency leave

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different.

 


Thank you for reading this - Jason Ward of WARDS LAWYERS PC.

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This WARDS LAWYERS PC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca | www.wardlegal.ca