COVID-19 and the Workplace: What Employees Need to Know (Updated August 9, 2020)

The content of this post is constantly updated and it presents the most recent information as of August 9, 2020.

Since mid-March 2020, we have answered hundreds of calls from employees in Ontario about their entitlements and options during the COVID-19 pandemic. Employees often feel they are presented with ultimatums and cannot afford to pay for legal advice to learn their options under labour and employment law. To make better decisions and plan ahead, read employees’ most frequently asked questions answered by Monkhouse Law, employment lawyers in Toronto.

New questions and answers, updated August 9, 2020

1. What happens when the CERB runs out?

The last CERB eligibility period is coming up (August 2, 2020 – September 26, 2020) therefore the benefit will no longer be available, in fact many individuals who started receiving the CERB in March have already exhausted the benefit. The Prime Minister announced on July 31, 2020 that once the CERB ends, those individuals who are eligible will be transitioned back on to E.I.

2. What if you do not qualify for E.I.?

For those workers who do not qualify for E.I., such as gig or contract workers, the PM said that there will be a “transitional parallel benefit” available which will be similar to E.I. but has not yet been rolled out. This benefit will also include access to training and being able to work more hours and earn more money while receiving the benefit.

3. What about those employees who are not provided coverage for sickness/caregiver benefits?

For employees who are not covered by their employer, a new sickness and caregivers benefit will be made available to them if they contract COVID-19 or need time off to care for children or parents with COVID-19. More details are expected at the end of this month.

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The following questions and answers were updated June 29, 2020.

  1. Can I be terminated for cause due to COVID-19?
  2. Can I not go to work if I fear infection during transit or at work?
  3. If I am infected or think I might be infected, what should I do to preserve my employment?
  4. What if I am not infected but I have to care for my children or a family member, can I still not go to work without losing my employment?
  5. Can I be terminated for just cause if I refuse to work due to fear of COVID-19 or keep arriving late?
  6. My job description has been significantly changed because of COVID-19, have I been dismissed or terminated?
  7. If my employment is terminated during the COVID-19, what are my entitlements from my employer?
  8. My employer says that they owe me nothing because operations are down due to the COVID-19 pandemic, is that right?
  9. I received a layoff notice, what are my rights? As a unionized worker or a non-unionized worker?
  10. If I am laid off for more than 13 weeks, am I terminated?
  11. More of us have been laid off or terminated, can we get group redress?
  12. What government support is out there for terminated workers? EI and CERB
  13. How do I apply for coronavirus benefits?
  14. I am currently pregnant and will be taking parental leave soon, if I apply for CERB will it affect my EI entitlements?
  15. I am still working, but reduced hours, am I able to apply for any government assistance?
  16. I am not making enough money while on EI, is there anything I can do?

1. Can I be terminated for cause due to COVID-19?

Termination for cause is capital punishment in employment law. The employer must prove that it had just cause to terminate the employee. Just cause means a “guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if [the employee] has been guilty of willful disobedience to the employer’s orders in a matter of substance.”

If an employee faked COVID-19 illness and that resulted in hardship for the employers (such as shutting down the location and disinfecting it), that could constitute just cause for termination. Otherwise, your employer is not allowed to discriminate against employees who had to miss work because of COVID-19 infection or caregiving obligations. We discuss employee’s rights during the COVID-19 pandemic in detail at Ontario Employees Rights During the Coronavirus School Shutdown, Illness and Quarantine.

2. Can I not go to work if I fear infection during transit or at work?

Ontario employees may now be entitled to an unpaid job-protected  Emergency Leave. Section 50.1 of the Ontario Employment Standards Act, 2000 (ESA) provides for a leave of absence in a declared emergency or infectious disease emergency. These provisions are where an employee is unable to perform the duties of their own position because of either:

      1.  a declared emergency (“Declared Emergency Leave”) – generally applicable for those who are not infected or 
      2. because of certain reasons related to an infectious disease (“Infectious Disease Emergency Leave”) – generally applicable for those infected with COVID-19.

To access Emergency Leave, employees are required to notify their employer that they are taking such a leave. However, in the present circumstances, failure to notify will very likely not disentitle the employee from the Emergency Leave.

To be entitled to the unpaid Declared Emergency Leave, generally, employees must be unable to work because either:

        1. they are subject to an order under the Emergency Management and Civil Protection Act;
        2. they are subject to an order under the Health Protection and Promotion Act;
        3. they are needed to provide care or assistance to a specified individual.

The Ontario Employment Standards Act prohibits reprisal against employees for accessing Declared Emergency Leave. Generally, employees who are entitled to a leave of absence under the ESA cannot be laid off during the leave and should be reinstated at the end of the leave. Additionally, the employer should continue benefits and contribution payments to pension plans, life insurance plans, accidental death plans, extended health plans, dental plans while the employee is on leave.

However, if an employee is not eligible to access the unpaid Declared Emergency Leave, they may not be able to refuse to go to work because of fear of contagion. If an employee refuses to go to work due to fear of contagion, in the absence of an order from the Medical Officer of Health, this could be considered “willful neglect of duty”. Under the Employment Standards Act, willful neglect allows an employer to terminate an employee without any financial compensation. Keep in mind that “willful neglect” is not actually defined in the statute, and therefore, it must be decided in each case based on the facts of the situation. 

To learn more, read our detailed post on Emergency Leave for Ontario Employees.

3. If I am infected or think I might be infected, what should I do to preserve my employment?

Employees are entitled to the Infectious Disease Emergency Leave because of a reason related to COVID-19 as of January 25, 2020.

To be entitled to the unpaid job-protected Infectious Disease Leave, generally, employees must be unable to work because of one of the following circumstances related to a designated infectious disease:

      1. The employee is under individual medical investigation, supervision or treatment;
      2. The employee is acting in accordance to an order of a medical officer of health or a court under the Health Protection and Promotion Act;
      3. The employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health;
      4. The employer directs the employee to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease;
      5. The employee is providing care to a specified individual, including because of closures of schools and daycares; or
      6. The employee is directly affected by travel restrictions preventing the employee from returning to Ontario.

Employees are entitled to the Infectious Disease Emergency Leave as long as the circumstances triggering the leave continue and the infectious disease is designated by the Ontario Regulations. Employees will be entitled to different lengths of Emergency Leaves depending on their circumstances. For example, an employee unable to return to Ontario due to travel restrictions may be entitled to a longer leave than an employee subject to a 14 days self-isolation.

Doctor’s notes are not required to access the Infectious Disease Emergency Leave. Employers are expressly prohibited from requiring an employee to provide a certificate from a qualified health practitioner as evidence to justify such a leave.

The Ontario Employment Standards Act prohibits reprisal against employees for accessing Declared Emergency Leave. Generally, employees who are entitled to a leave of absence under the ESA cannot be laid off during the leave and should be reinstated at the end of the leave. Additionally, the employer should continue benefits and contribution payments to pension plans, life insurance plans, accidental death plans, extended health plans, dental plans while the employee is on leave.

To learn more, read our detailed post on Ontario Employees: Unpaid-Hob Protected Emergency Leave Available to Those Affected by COVID-19.

4. What if I am not infected but I have to care for my children or a family member, can I still not go to work without losing my employment?

Employees who must care for their children and are unable to work because of the daycares’ closures could be entitled to take an unpaid job-protected  Emergency Leave.

Under the ESA, the unpaid Emergency Leave would be available to employees who need to provide care or assistance to:

      1. The employee’s spouse;
      2. A parent, step-parent or foster parent of the employee or the employee’s spouse;
      3.  A child, step-child or foster child of the employee or the employee’s spouse;
      4.  A child who is under legal guardianship of the employee or the employee’s spouse;
      5.  A brother, step-brother, sister or step-sister of the employee;
      6.  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
      7. A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
      8. A son-in-law or daughter-in-law of the employee or the employee’s spouse;
      9. An uncle or aunt of the employee or the employee’s spouse;
      10. A nephew or niece of the employee or the employee’s spouse;
      11. The spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
      12. A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

5. Can I be terminated for just cause if I refuse to work due to fear of COVID-19 or keep arriving late?

This is not tested in courts yet, yet, it is possible that coming late or not coming to work at all out of fear of contagion may constitute a job abandonment. Job abandonment is considered termination for just cause. It is to be noted that job abandonment cannot be applied if the employee is on a leave under one of the two emergency leaves, meaning Declared Emergency Leave or Infectious Disease Emergency Leave.

In order for an employer to terminate an employee for job abandonment, the employee’s intention to abandon their position must be made clear. As with most just cause arguments, the lines may be blurry. There is no specific length of time stipulated within the employment legislation in Ontario that constitutes job abandonment.

Being frequently absent or late for work usually does not justify a just cause termination because a closer look into the specific factors of a situation is often necessary. The test most frequently applied when determining whether just cause exists in relation to job abandonment is simple. The employer must determine whether the employee willfully disobeyed the company policies or employer’s specific rules. Other factors that may be relevant include whether the reason for the absence seems reasonable, how honest the employee was about their absence, whether their absence prejudiced the company, past warnings regarding absences or tardiness, seniority and length of service of the employee, and the seriousness of the incident(s).

Employers are under a legal obligation to provide a safe work environment for their employees. So, if you are afraid of coming to work due to contagion, discuss your concerns with your supervisor or employer and consult your joint health and safety committee member or health and safety representative, if there is one. If the work environment still seems unsafe to you, you can report it to the Occupational Health and Safety Inspector and ask for a determination. Also, you may apply to the employer for a Declared Emergency Leave. 

If your workplace is determined safe and you refuse to go to work, that might constitute job abandonment unless you are on an Emergency Leave.

6. My job description has been significantly changed because of COVID-19, have I been dismissed or terminated?

If an employee’s duties, hours of work, or wages are significantly changed due to COVID-19, they are deemed to be on “infectious disease emergency leave”, as prescribed by the new Ontario regulation (O. Reg. 228/20) issued by the government on May 29, 2020.

The new rules apply to all work or pay reductions and layoffs related to the pandemic from March 1, 2020 and until 6 weeks after the declaration of emergency is lifted in Ontario (the Prescribed Period).

Employees who have either been laid off, had their hours or pay reduced, or are not performing their regular duties as a result of COVID-19 will not be able to apply to the Ministry of Labour with a complaint. However, employees affected will still have access to judge-made remedies, such as constructive dismissal and breach of contract at common law.constructive dismissal occurs when an employee is forced to resign as a result of a unilateral change by the employer to a fundamental term of the employment contract.

More information on the new regulation can be found in our article, Ontario curtails right to claim constructive dismissal for COVID-19 layoffs.

7. If my employment is terminated during the COVID-19 pandemic, what are my entitlements from my employer?

If your employment is not terminated for cause, you should be entitled to termination damages from your employer. Ontario legislation sets out minimum employment standards entitlements, however, you may be entitled to common law notice, which is generally significantly longer the minimum employment standards if:

      • You do not have an employment contract;
      • The employment contract is silent as to your termination entitlements; or
      • The termination clause that limits your rights is unenforceable.

8. My employer says that they owe me nothing because operations are down due to the COVID-19 pandemic, is that right?

Canada and the world have not recently faced anything like the COVID-19 pandemic, however Canadian court decisions that could be used as guidance indicate that:

      1. Unless the pandemic actually forces a business to shutter its operations for good, then there is likely no frustration of the employment contract (the contract is still valid and binding on the parties); and
      2. Mere economic hardship caused by the pandemic is likely not sufficient to justify layoffs without pay. Unless the pandemic actually renders it temporarily impossible to carry on the employment relationship, then layoffs without pay are likely not justified.

A useful New Brunswick case dealing with the employment consequences of a fire that destroyed a manufacturing plant may provide some guidance for the COVID-19 pandemic. In Davidson et. al v Craig Manufacturing Ltd, a fire destroyed the employer’s manufacturing facility on May 7, 2005. The employer wrote to its employees on May 20, 2005, advising that they intended to rebuild. All employees returned to work after rebuilding except for three, the plaintiffs, who were issued dismissal letters shortly after the fire. The employer took the position that the three plaintiffs’ employment had been frustrated by the fire and by extension that no termination pay was owed.

The Court disagreed that the plaintiffs’ employment had been frustrated, since, even after the fire, the employer still had a viable business. In fact, the employer was able to quickly rebuild a new factory and get folks back to work in less than a year.

The Court found that to the extent an unexpected and unpredictable intervening event makes it impossible for the employer to continue the employment relationship, then for that period of time, the employer is no longer obligated to perform. So, for an employee who is employed under an indefinite term employment contract, the intervening event would have to make it impossible to ever continue the employment relationship in the future.

9. I received a layoff notice, what are my rights?

A layoff is a period when an employer ceases to provide work and, in most cases, compensation to an employee. Unlike permanent layoffs, temporary layoffs are intended for a short period of time. Despite this interruption of work and compensation, the parties treat the employment relationship as ongoing, with the understanding that work and compensation may resume in the future. During the temporary layoff, the employee is generally not entitled to termination pay.

We discuss temporary layoffs and COVID-19 at length on our website, so read more at Temporary Layoffs due to COVID-19 and Employee’s Rights. We also provide a useful infographic explaining temporary layoffs.

If you are a unionized worker – your collective employment agreement may anticipate layoffs

In unionized workplaces, collective agreements often anticipate temporary layoffs, permitting employers to impose them within a negotiated framework that preserves seniority, job security and employment status. It is rare that a non-unionized workplace has a similar framework for seniority and recall rights.

An employer is able to put a temporary layoff clause in an employment contract unless it would contradict the Employment Standards Act (ESA). In the absence of express contractual provisions, temporary layoffs are allowed because, generally, under s. 8 of the ESA no civil remedy is affected by the ESA. By consequence, although the ESA allows for temporary layoffs it does not ‘read in’ the right to temporarily lay off an employee.

If you are not a unionized worker – you must review your employment agreement attentively to determine whether it includes a temporary layoff clause

As of May 29, 2020, the Ontario government issued a significant regulation, O. Reg. 228/20, that retroactively converts layoffs that were started on or after March 1, 2020 into “Infectious Disease Emergency Leaves”. These updates only affect non-unionized employees.

Under the new rules, employees who:

  • have had their hours reduced or eliminated for reasons related the COVID-19 pandemic; or
  •  are not performing the duties of her position as a result;

will be deemed for ESA purposes to be on an unpaid, job-protected leave called Infectious Disease Emergency Leave.

The new rules apply to all work or pay reductions and layoffs related to the pandemic from March 1, 2020 and until 6 weeks after the declaration of emergency is lifted in Ontario (the Prescribed Period).

Under the new rules, all layoffs related to COVID-19, for which the Deemed Termination Period (defined below) has not lapsed prior to May 29, 2020, during the Prescribed Period are now unpaid, job-protected emergency Infectious Disease Emergency Leave. Prior to the May 29, 2020 change, a temporary layoff was allowed only if expressly provided in the employment agreement. The Deemed Termination Period for a layoff is:

  1. If the employer is not contributing to the employee’s benefits plan, the layoff could last for 13 weeks.
  2. If the employer is contributing to the employee’s benefits plan, the layoff could last 35 weeks.

If the employee was not recalled to work before the end of the Deemed Termination Period, the employee would have been deemed to be terminated and would be owed notice of their termination.

Employees who have been laid off or had their hours or pay reduced as a result of COVID-19 will not be able to apply to the Ministry of Labour with a complaint regarding the layoff or for the work or pay reduction. However, employees affected by the reduction in hours or temporarily laid off will still have access to judge-made remedies, such as constructive dismissal and breach of contract at common law.

More information on the new regulation can be found in our article, Ontario curtails right to claim constructive dismissal for COVID-19 layoffs.

10. If I am laid off for more than 13 weeks, am I terminated?

Prior to May 29, 2020, a temporary layoff was allowed only if expressly provided in the employment agreement. The Deemed Termination Period for a layoff is:

  1. If the employer is not contributing to the employee’s benefits plan, the layoff could last for 13 weeks.
  2. If the employer is contributing to the employee’s benefits plan, the layoff could last 35 weeks.

If the employee was not recalled to work before the end of the Deemed Termination Period, the employee would have been deemed to be terminated and would be owed notice of their termination.

Due to the new Ontario government regulation, O. Reg. 228/20, all layoffs related to COVID-19, for which the Deemed Termination Period has not lapsed prior to May 29, 2020, during the Prescribed Period are now unpaid, job-protected Infectious Disease Emergency Leaves. The regulation states that employees have the right to their position back after the leave.

More information on the new regulation can be found in our article, Ontario curtails right to claim constructive dismissal for COVID-19 layoffs.

11. More of us have been laid off or terminated, can we get group redress?

If multiple workers have the same legal or factual issues, there may be a procedural means to get them group redress. In the case of group lay-offs or mass terminations, one worker may be able to represent the larger group and fight for the group’s legal entitlements through an employment class action.

12. What government support is out there for terminated employees? EI and CERB

The following federal programs are available or will be directly available to employees to fare the economic downturn caused by the COVID-19 pandemic: Employment Insurance, EI Sickness Benefit, and CERB.

1. Employment Insurance – EI

Changes have been made to the Employment Insurance rules for employees that are required to self-quarantine due to COVID-19. Additionally, employees can make a claim for sickness benefits when medical reasons are preventing them from working.

The one week waiting period to receive sickness benefits and the requirement for a medical certificate are both now removed. This means that if an employee is quarantining for two weeks, they will receive compensation for the entire two-week period, instead of only half of the time period. 

It is important to note that a medical certificate is required to make a claim for benefits outside of the quarantine period, for example, if an employee contracts COVID-19 and is unable to work. Find out more information on medical certificates.

a. Requirements for EI Sickness Benefit

      1. Unable to work due to medical reasons;
      2. Regular weekly earnings have decreased by more than 40% for at least one week; and
      3. At least 600 insured hours of work in the previous 52 weeks before the start of the claim (600 hours of work amounts to 20 weeks of work, working 30-hour weeks).

More information on requirements for EI Sickness Benefit.

b. If you are self-employed: EI Special Benefits

You must be registered for access to EI Special Benefits and the amount of time spent on your business has decreased by more than 40% for at least one week due to your medical condition and you need to have earned at least $7,279.00 in 2019.

c. How much can an employee claim?

You could receive 55% of your insurable earnings, as defined by the CRA, to a maximum of $573.00 per week for a maximum of 15 weeks. The amount received depends on your insurable earnings in the past 52 weeks, or since the start of your last claim, whichever is the shorter time period.

If your family income is $25,921.00 or less, you may be entitled to the family supplement if you also have one child under 18 and you or your spouse receive the Canada Child Benefit. This supplement would be automatically added to your weekly benefit payments; however, the total weekly amount provided cannot exceed $573.00.

2. Canada Emergency Response Benefit – CERB

On March 25, 2020, the Federal Government announced the introduction of the Canada Emergency Response Benefit (CERB). This new benefit scraps the previously announced and unimplemented Emergency Care Benefit and Emergency Support Benefit.

This benefit will provide up to $2,000 for 16 weeks for those who lose pay as a result of the COVID-19 pandemic. Workers, such as employees, self-employed and contractors who do not qualify for EI will have access to the CERB.

On April 15, 2020, the Federal government expanded eligibility for the CERB to include those earning $1000 (before taxes) per 4 -week eligibility period. Additionally, seasonal workers who have exhausted their E.I. regular benefits and are unable to undertake their regular seasonal jobs because of COVID-19 and regular workers who have exhausted their regular E.I. benefits and are unable to find or return to work due to COVID-19 are now eligible for the CERB. All of these eligibility requirements are retroactive to March 15, 2020.

NEW: On June 16, 2020, the government has extended the CERB by another eight weeks in order to further assist those workers who have not yet returned to work or are still unable to find new employment due to COVID-19. The maximum payable amount of the CERB will be $12,000 over 24 weeks.

Additionally, it is important to know that if you were eligible for Employment Insurance (EI) and applied for the CERB through Service Canada, you received an extra $2,000 when the CERB benefit began. This $2000 was an advance of the benefit, therefore, you would have reached your maximum payable amount of $8,000 in June. If you received this advance, you will not receive a payment when you complete your next biweekly report. However, you should continue to submit your biweekly reporting as this shows that you are eligible for all weeks of the CERB, including the four weeks of the benefit covered by the advance payment.

13. How do I apply for coronavirus benefits?

You can apply for the CERB either through Service Canada or the CRA, but not both. Additionally, if you have already applied for Employment Insurance (EI) through Service Canada, you cannot apply for the CERB with the CRA. Find out more information on applying for the CERB.

Below are the two different ways to apply for the CERB:

1. How to apply with the CRA

a) Online with CRA My Account; or

b) Over the phone with an automated phone service

2. How to apply with Service Canada

a) Sign in to CRA My Account with a My Service Canada Account.

  • Since you have a My Service Canada Account, you do not need to register for a CRA My Account.

b) After you sign in to My Service Canada Account

c) Look for the link to “Switch to Canada Revenue Agency” and then “I agree” on the Registration and authentication page

  • This transfers you to CRA My Account

d) Update your address and direct deposit with CRA (CRA does not have your personal information from your My Service Canada Account)

If you are eligible for the CERB, you can expect $2,000 ($500 per week) for a 4-week period. The CERB is paid by direct deposit or by cheque if your direct deposit information is not on file. After you apply, you should get your payment in 3 business days via direct deposit or by cheque in approximately 10 business days. If your situation continues, you can re-apply for a payment for multiple 4-week periods, to a maximum of 16 weeks (4 periods).

CERB payments will be issued every four weeks and will be available retroactively from March 15, 2020, to Oct. 3, 2020.

For more details on Government support programs for workers check our article: Government Support for Employees during the COVID-19 Pandemic: Employment Insurance, Temporary and Long Term Support.

14. I am currently pregnant and will be taking parental leave soon, if I apply for CERB will it affect my EI entitlements? 

Canadians who are planning on receiving EI maternity and EI paternal benefits between March 15, 2020, but before October 3, 2020, should apply for CERB if they lost income due to COVID-19. Please keep in mind, you cannot receive both CERB and EI at the same time. Once an employee’s CERB benefit runs out, they should apply for EI maternity and EI paternal benefits. 

EI Maternity Benefits: EI maternity benefits can start up to 12 weeks before the expected date of birth and can end as late as 17 weeks after the actual date of the birth. 

EI Paternal Benefits: Parental benefits must be used within 52 weeks after the child’s birth or when the child is placed with you.

15. I am still working, but reduced hours, am I able to apply for any Government Assistance? 

Employees who are still working may still be eligible for Government assistance if they have agreed with they employer to participate in a Work Sharing Program or if they qualify for the CERB. 

The Federal EI Work Sharing Program provides EI benefits to workers who agree to reduce their normal working hours due to COVID-19. In order to be eligible for the Work Sharing Program, an employee must be employed year-round either full-time or part-time permanent. Furthermore, employers must:

      • Have been in business in Canada for at least two (2) completed years;
      • Be a private business, a publicly-held company, or a not-for-profit organization;
      • Demonstrate that the shortage of work is temporary and is out of their control, and it is not a cyclical or recurring slowdown;
      • Demonstrate a recent decrease in business activity of approximately 10%; and
      • Submit and implement a recovery plan designed to return to normal working hours.

Under EI Work Sharing Program, an employee’s work schedule can be reduced between a minimum of 10% (one half-day) and a maximum of 60% (three days). The program must have a minimum duration of six weeks and as a result of COVID-19, may last up to 76 weeks. 

Canadian Emergency Response Benefit (CERB): Employees who earn income can still receive CERB. A worker on CERB will need to make an online declaration every four weeks about whether they are still not working or receiving income. An employee must demonstrate that in the last four weeks they did not work at least 14 days and did not receive pay for at least 14 days. Workers may earn income on the remaining days within the four week period. 

For more information, please see: Government introduces Canada Emergency Response Benefit to help workers and business.

16. I am not making enough money while on EI, is there anything I can do?  

For some employees, EI payments might mean a lot less than 55% of their salary. If the employment contract does not contain a valid layoff clause, the employee may be eligible to request a top-up from their employer above and beyond EI by claiming a breach of employment contract. The employee could ask for a top up at the commencement of their layoff or it could be requested once the worker returns to work. It is worth noting that such claims have yet to be tested in the context of COVID-19 and that the assistance of an employment lawyer would be useful for such cases.

Employers who want to top-up employees who are no longer working may register a Supplemental Unemployment Benefit (SUB) Plan with the Government. Employers can use a SUB plan to increase their employees’ weekly earnings when they are unemployed due to a temporary layoff. The top-up cannot exceed 95% of the employee’s weekly earnings. The SUB Plan must be registered with Service Canada before payments may start, otherwise, the payments under the plan will decrease the employee’s EI entitlements.

Additionally, it is important to know that if you were eligible for Employment Insurance (EI) and applied for the CERB through Service Canada, you received an extra $2,000 when the CERB benefit began. This $2000 was an advance of the benefit, therefore, you would have reached your maximum payable amount of $8,000 in June. If you received this advance, you will not receive a payment when you complete your next biweekly report. However, you should continue to submit your biweekly reporting as this shows that you are eligible for all weeks of the CERB, including the four weeks of the benefit covered by the advance payment.

Authors: Alexandra Monkhouse—Employment Lawyer and Partner, Stephen Lemesurier—Employment Lawyer and Senior Associate, Danielle Rawlinson—Employment Lawyer and Mikaela O’Neil—Paralegal at Monkhouse Law.

Monkhouse Law is a boutique employment law firm in Toronto with a particular focus on workers’ issues. If we can help, give us a call. We offer a free 30 minute phone consultation.

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