I'M ORDERED TO CLOSE THE BUSINESS, OR HAVE TO DUE TO LACK OF WORK – DO I LAY OFF THE EMPLOYEES? DO I PLACE THEM ON EMERGENCY LEAVE OF ABSENCE? HOW DO I CHOOSE? HOW DO I DO THE ROE?
FIRST QUESTION – ARE YOU “ESSENTIAL”?
Review the list of essential workplaces here:
Make sure you are certain whether your business may continue in operation lawfully, or shut down by the Ontario government’s emergency order.
If you are not an “essential workplace”, per the list, you may have to determine whether your employees will be laid off, or placed on a Declared Emergency Leave (a “DEL”), per the recent changes to Ontario’s Employment Standards Act, 2000 (the “ESA”) (primarily the new job-protected, unpaid leave of absence available to employees who cannot work due or, or arising from, COVID-19.
Remember, teleworking and online commerce are permitted at all times for all businesses.
WHAT IF YOU ARE “ESSENTIAL”, BUT NEED TO TEMPORARILY CLOSE DUE TO THE VIRUS?
You may need to consider temporary suspension of your business operations because of: (1) lack of work; or (2) the perception publicly, or otherwise, that you are not an essential business and are required to close, except for the ability to continue by teleworking or by remote operations.
This is important, because if your business is an “essential workplace”, but you stop operations anyway, it may impact whether you should lay off your employees, or place them on a DEL, legally.
CAN I USE ‘WORK-SHARING’ TO AVOID LAY OFFS?
The federal work-sharing program is a potentially viable alternative to lay offs, if you qualify.
You can find more information from us on avoiding lay offs by using work-sharing here: http://wardlegal.ca/31582887996646
DO I LAY OFF EMPLOYEES OR PLACE THEM ON A DECLARED EMERGENCY LEAVE UNDER THE ESA?
If your business is not an “essential workplace” and, therefore, is required to cease operations due to the emergency order by the Ontario government, your employees are very likely eligible to be placed on a job-protected, unpaid DEL under the ESA and, as a result, they will also very likely be eligible to obtain employment insurance benefits (“EI”) or, alternatively, the new CERB, from the federal government. However, since a DEL is a statutory leave of absence permitted by the ESA, if your employees have extended health benefits, they should be continued during the DEL.
You can find more information from us about EI benefits and the CERB here: http://wardlegal.ca/31585663827847
However, if your business is not required to close by order, but you will be stopping your operations for other legitimate reasons, such as lack of work and demand, etc., this may still be temporary lay-off under the ESA and, therefore, your staff are eligible to apply for benefits under the EI Act.
EI benefits may offer your employees a greater financial benefit than the CERB, or vice versa.
Also, if you lay off employees, you have a statutory duty to call them back in thirteen weeks, unless the pandemic continues at that time and subject to any emergency orders in effect at that time.
Therefore, whether to lay off or place employees on DEL depends on:
 whether you are an “essential workplace”;
 whether you are closing by order, or voluntarily and, if the latter, whether you have legitimate business reasons to do so; and
 which route would increase the financial benefit to your employees during this pandemic; and
 if you have choice, whether you are comfortable, from a business perspective, with the potential obligation to call back your employees within a specified period of time, per the ESA, subject to the uncertain, future events for this pandemic.
HOW DO I COMPLETE RECORDS OF EMPLOYMENT (ROEs)?
Here is how:
A – For layoff (i.e., lack of work)
D – For illness or injury (i.e., illness or quarantine due to COVID-19)
N – For leave (i.e., DEL in Ontario)
You can find more information about ROEs here: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html
Service Canada has indicated that:
“If your employees are directly affected by the coronavirus (COVID-19) and they are no longer working, you must issue a Record of Employment (ROE). When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments. When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments. When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.”
You should not use code E (i.e., the employee quit) without seeking legal advice before doing so, even if the employee refuses to go to or attend work, rightly or wrongly.
March 31st, 2020
Posted in COVID-19