Ontario Employees Rights During the Coronavirus School Shutdown, Illness and Quarantine

On March 12, 2020, the Ontario government announced that public schools will be closed in an attempt to stop the spread of coronavirus COVID-19. 

While our young ones are excited by the prospect, parents are scrambling to find alternatives. Lots of difficult questions arise including:

  • Will I lose my job if I have to stay home to take care of the kids?
  • What happens to my employment if I get sick?
  • What can I do if it takes longer to find a new job now?
  • What is the Ontario government doing to help workers?

Will I lose my job if I have to stay home to take care of the kids?

Coronavirus and Your Employment Rights
As a parent of two, I quickly had to come to terms that if both the school and daycare are closed, one of the caregivers will have to stay home. What does that mean for your employment? The bright side is that you should not lose your job, the flip side is that the leave might entail a reduction in pay commensurate to a reduction in duties.

Employers are not allowed to discriminate on the basis of family status. This means that generally parents who have to stay home during Ontario’s 3-week school shutdown should be accommodated to perform their work duties while taking care of the children. If the parent is forced to go on leave, while that leave may be unpaid, it should not constitute grounds for dismissal. The Ontario Human Rights Commission provides the following examples of workplace accommodation:

  • Providing flexible scheduling
  • Allowing employees to take leaves of absence to care for family members who are ageing, ill or have a disability
  • Allowing alternative work arrangements

The same logic applies to those taking care of their children or elderly parents.

What happens to my employment if I get sick?

Coronavirus and Your Employment Rights When Sick
What happens if you get sick or are under quarantine due to COVID-19? We cover more details on the following topics:

  • Coronavirus and Sick Days
  • Coronavirus and Human Rights Code
  • Coronavirus and Occupational Health and Safety
  • Afraid to come to work because of COVID-19
  • EI and Coronavirus
  • Short Term Disability and Coronavirus

Coronavirus and Sick Days
Under Ontario employment law, employees are permitted to take three unpaid sick days. However, an employee cannot be terminated for cause for taking more than three sick days because of the coronavirus. An employer can terminate an employee for cause if the committed “willful neglect of duty” and genuine coronavirus infection or quarantine would not qualify.

Coronavirus and Human Rights Code
Under the Ontario Human Rights Code, an employer cannot terminate an employee without cause because of the coronavirus. Given that the World Health Organization has declared the COVID-19 a pandemic, coronavirus illness or quarantine is serious enough that it would qualify as a “disability” under the Code and employers cannot fire employees for disabilities. Nevertheless, employees should consult an employment lawyer, since no decision has clearly stated that the coronavirus is a disability. More details published on March 10, 2020 by the Government of Canada “Notice: Coronavirus (COVID-19) and occupational health and safety“.

Recently, on March 13, 2020 the Ontario Human Rights Commission published a policy statement on the COVID-19 Pandemic.

Coronavirus and Occupational Health and Safety
In Ontario, under the rights and duties of the Occupational Health and Safety Act, all workers have to take reasonable precautions for their protection and the protection of other workers. By consequence, a worker with coronavirus may be liable for damage caused to the coworkers in the absence of reasonable precautions.

Employers must “take all reasonable precautions to protect the health and safety of workers”. Employers may be required to order employees to work from home, to avoid liability under the Act. For example, if an employer knows that an employee has coronavirus or has been exposed to it, that employer may have to require the worker to stay away from work. Employers do not need to pay employees ordered to self-quarantine.

As part of their duty to keep the workplace safe, employers are allowed to ask employees if they have coronavirus or whether they travelled to hotspots of the coronavirus outbreak.

Afraid to Come to Work Because of Coronavirus
If an employee refuses to go to work in the absence of a genuine coronavirus illness or quarantine, that could be considered a “willful neglect” of their job duties and could be terminated for cause. However, where attending the workplace is likely to spread the coronavirus, the employee should not fear termination for cause until the situation is resolved.

 EI and Coronavirus
While the employer does not have the duty to pay employees on sick leave or quarantine, those employees could access Employment Insurance sickness benefits. Here are the key facts about EI sickness benefits:

  • EI will cover up to 15 weeks of income if the employee cannot work because of the coronavirus illness or quarantine
  • To be eligible for EI, employees must have paid EI premiums and have worked 600 hours in the past 52 weeks
  • The employee will have to provide a medical certificate showing that they cannot work for medical reasons such as coronavirus illness or quarantine
  • EI will provide 55% of earning and up to $573 per week
  • The first EI cheque should arrive in 21 days after the employee signs up

Short Term Disability and Coronavirus
Employees who are fortunate to have Short Term Disability Coverage may apply for coverage in case of illness or quarantine. They should contact their employer and insurance as soon as they fall sick or are quarantined. Some insurance providers may not require a doctor’s note to commence coverage.

What can I do if it takes longer to find a new job now?

Severance, Termination Notice and Coronavirus
The coronavirus appears to have triggered an economic downturn which makes it difficult for job seekers to find alternative employment after losing their job. This factor may elongate the termination payment the former employer owes.

What is the Ontario government doing to help workers?

On March 16, the Ontario Government announced that it intends to introduce legislation that, if passed, would immediately provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures. The bill is expected to be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

The proposed legislation would, if passed, provide job protection for employees unable to work for the following reasons:

  • The employee is under medical investigation, supervision or treatment for COVID-19.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  •  The employee is in isolation or quarantine.
  •  The employee is acting in accordance with public health information or direction.
  •  The employer directs the employee not to work.
  •  The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

The proposed legislation would also make it clear that an employee will not be required to provide a medical note if they take the leave.

About the Author: Alexandra Monkhouse is an Employment Lawyer and partner at Monkhouse Law. During these stressful times, it is important for both employees and employers to communicate their needs clearly and take care of their health. 

Monkhouse Law is a law firm that specializes in all workplace issues. Our team of 11 employment lawyers can help you navigate the challenges of the new work arrangements imposed by the COVID-19 measures.

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