While we are being reassured that the Ontario and Federal governments have implemented measures to protect Ontarians from COVID-19 as well as to assist with flatten the epidemic (EPI) curve of COVID-19, to do so truly requires every Canadian to conduct themselves in a socially conscious and responsible manner. This can be easier said than done – especially given economic considerations at play.
Under the Occupational Health and Safety Act employers are responsible for communicating and ensuring that their employees are trained on the workplace hazards of COVID-19 and related infection prevention measures so that all reasonable precautions are implemented. Employees are under the OHSA are responsible for adhering to such measures. Seems simple enough but to do so requires that every person self-report and adhere to self-isolation or self-quarantining if they are sick or have travelled outside of Canada. To do so also requires those who continue to work to significantly change their behaviours such as working from home, social distancing or using effective safety measures (washing hands, not shaking hands, and not touching their faces) and equipment, as applicable. We are creatures of habit and are often resistant to change and what at first blush appears to be extreme or paranoid behaviour.
Such preventive measures by their very nature rely on the honour system and self-monitoring and as such may sadly be unrealistic. In the uncertain economic climate caused by COVID-119, being social conscious may seem to some to be a luxury as it comes at the price of forfeiting their income and sense of personal and economic security.
All leaves of absence under the Employment Standards Act are currently unpaid. While some are supplemented by EI benefits, this is at a percentage of earnings up to a maximum of $562/week – including Sickness Benefits during self-isolation or quarantine. The recent temporary changes to EI benefits accelerate access to Sickness Benefits or Work Sharing programs (the latter limited to certain, limited industries) and extends Sickness Benefits to independent contractors.
As of March 17, 2020 Ontario’s declared emergency triggered the “Declared Emergency Leave” provisions of the ESA. Such leaves usually end when the declared emergency ends, which can particularly negatively impact on employers’ decisions to implement temporarily layoffs (i.e., for a shortage of work) in order to trigger regular EI benefits. This is because employers cannot lay off employees while they are on approved ESA leaves, even if unpaid.
The federal government on March 18, 2020 passed, and many continue to pass, “emergency economic measures” to support individual Canadians and their employers during the CPVID-10 crisis. Currently such measures may see employers receive up to 10% assistance with their payroll, and tax and mortgage payment deferrals for all Canadians owing tax and/or with a mortgage, among other “liquidity” measures.
But what do workplace players realistically need to do in the interim or where all implemented government measures aren’t enough on their own to keep businesses viable?
All workplace parties need to work together with empathy and active listening to find practical solutions; solutions that may be a win/win and a lose/lose for all.
What does this mean?
Loyalty, flexibility, integrity and personal accountability will need to be practiced on both sides. This starts with open, clear and calm communication; we all face insecurity during this crisis.
Employers may need to change how, how long, when and where, if possible, their work is performed to meet client needs and/or protect their most important asset – their employees. In response, employees will need to be open to adapting to changed circumstances and new ways of working to assist with their employer’s viability and/or to ensuring their safety.
If employers communicate that they cannot meet payroll where their employees are not working and they don’t have written employment contracts permitting temporary layoffs, or the aforementioned changes to terms and conditions of employment – employees’ responses cannot be – “I’m suing for constructive dismissal”. Not only will such an egocentric response likely cause them to chase a paper tiger, ending up as an unsecured creditor behind the banks and other secured creditors when their employer declares bankruptcy, they will not be acting as a problem-solving partner seeking more constructive solutions to keep the business viable – a win for all.
Each one of our actions makes a difference to Ontario’s economic viability moving forward.
Sheryl Johnson is a Partner at Sullivan Mahoney. She has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment, labour, administrative and employment related privacy, cannabis, Aboriginal and Indigenous law as well as in civil litigation. She is the author of Sexual Harassment in Canada: A Guide for Understanding and Prevention. Email: firstname.lastname@example.org