Effective Thursday, April 8, 2021, the Ontario government issued a province-wide Stay-at-Home order. This is the third state of emergency under the Emergency and Civil Protection Act. The government’s Stay-at-Home order requires everyone to stay at home except for permitted purposes such as going grocery shopping, visiting the doctor, exercising, or attending to specific important and permitted works that cannot be done at home. Read on to find out the answers to 5 top questions all employees ask.
Can the employer require the employee to work from home?
The Employment Standards Act, 2000 (“ESA”) sets out minimum standards of employment for most employees in Ontario workplaces. It does not prohibit employers from requiring employees to stay at home due to potential public health risks, like COVID-19. Also, Ontario’s Occupational Health and Safety Act require employers to protect the health and safety of their workers. Similarly, provincial employers are required to take precautions to protect their workers.
Although generally, employers are not permitted to make unilateral changes to the terms of an employee’s employment, such as demanding that they work from home because this could trigger a risk of constructive dismissal – but COVID-19 has brought a lot of changes, and adaptation to the current situation has become necessary. Employers are therefore now required to make it possible for employees to work remotely. Realistically, in order to slow the spread of the virus, working from home or “telecommuting” may be a wise option for both the employer and employee.
If an employer however, bases their request to stay home on legally prohibited discriminatory grounds such as race, age, and sex, then that could violate the human rights of such an employee and give rise to claim for damages if successfully established.
Can the employer require the employee to come to work during the Stay-at-Home order?
Unfortunately, the province does not have the resources that can review all employee’s job descriptions in order to determine who can work from home or not. The employer, therefore, has the discretion to decide who fits into this category. If you are an essential worker and you disagree with the employer’s decision, and you believe the workplace is still unsafe, you should consider speaking to the employer to ask if you can work from home, and if your employer refuses and you reasonably believe you can work from home, you can contact the Ministry of Labour to file a health and safety complaint. If your employer takes extreme measures such as terminating your employment, or reprises you, contact one of our employment lawyers at Monkhouse Law to help you address your concerns.
Employees who are essential workers who have to go physically to work have bigger challenges when schools are also closed. While on the one hand, they are required to be at work, on the other, they have important family responsibilities. While the law in this regard is nascent, employers would have to consider accommodating employees with childcare responsibilities during school closures. More so, human rights legislation prohibits discrimination against individuals on the basis of family status and requires that such employees be accommodated to the point of undue hardship.
However, employees will only be permitted to go to work under the stay-at-home order if only their workplace is permitted to open and if the nature of their work necessitates it.
If my employer tells me to stay home, do they have to pay me?
Your employer is not required under the ESA to pay wages if no work was performed by the employee during a mandated stay home order, but if the employee is working from home, the employer must continue to pay. However, some employees may have additional rights under an employment contract such as a collective agreement, the common law, or other legislation that gives them greater rights. Employees may also be entitled to employment insurance benefits or other federal government financial support during this period. This is a complicated topic because it involves several areas of law including contract law, statutory provisions, and several related policies. It would be best to contact an employment lawyer to guide you appropriately if you believe you have additional rights entitling you to be paid during the Stay-at Home order.
Can my employer require me to use vacation days to cover any absences from work because of COVID-19?
More often than not, the employer has the final right to determine the dates when an employee will take an accrued vacation, subject to the terms of the employer’s vacation policies, the terms of any collective agreement, and the various limitations set out in minimum standards legislation.
However, if the norm within the organization is that the employee decides their own vacation time and this is deemed as general practice, the employee may be able to argue that the employer does not have the right to dictate vacation periods.
Generally speaking, employers have a lot of sway in deciding the selection of when their people can take time off. One grey area is if you have a preapproved vacation time before COVID-19 started and due to COVID-19, you are off on leave or layoff during that scheduled period. In that case, it will seem unfair if your employer makes you lose that vacation time. You are entitled to it and it should be preserved by the employer.
Can I request vacation during the temporary layoff period?
Under the ESA, everyone is entitled to two full weeks’ vacation time or pay and three weeks if you are employed over 5 years. Due to COVID-19 and considering the fact that many employees have been using the Infectious Disease Emergency Leave for almost one year, those employees should have received their accrued, although mostly unused vacation pay by now.
The legislation permits an employee to request vacation time and such an employee is entitled to be paid their full remuneration throughout the vacation period. This amounts to 4% or 6% of gross wages earned during a 12-month vacation entitlement year.
If you have questions about how the Stay-at-Home order impacts your employment on any of the discussions above, contact Monkhouse Law Employment Lawyers for a free 30-minute consultation.
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