Wrongful Dismissal Due To COVID-19: Ontario

wrongfull dismissal during COVID-19 OntarioWrongful dismissal usually entitles employees to compensation, but how does COVID-19 change that, if at all? Read on to learn more about the rights of employees if facing wrongful dismissal due to COVD-19.

Can I be terminated if I complain about COVID-19 safety concerns?

You cannot be terminated for complaining about COVID-19 related safety concerns.

Under the Ontario Occupational Health and Safety Act (“OHSA”), employers have a duty to provide a safe workplace for employees. This is true vis-à-vis COVID-19 as well. Therefore, employers have a legal duty to ensure that they are taking all reasonable precautions to ensure the safety of their workers when it comes to the virus. What is reasonable and necessary may change with the workplace.

Examples of reasonable precautions include making and enforcing mask-wearing policies, permitting or requiring some or all workers to work from home, and increasing cleaning and disinfecting the office or workplace. Workers who are concerned about workplace safety for reasons related to COVID-19 or otherwise can anonymously file a complaint with the Ministry of Labour.

Does COVID-19 change my rights if I am facing wrongful dismissal?

Under the Ontario Human Rights Code, employers have a duty to accommodate workers’ human rights’ related needs to the point of undue hardship. In the context of COVID, some relevant Code grounds include disability, family status, and age. This means that an employer must work with you to provide reasonable accommodations for the needs you may have for things that are related to those factors. This duty exists up to the point that it would be financially unfeasible or a health and safety concern for your employer to accommodate you. Accommodation is a two-way street: you should be discussing and working with your employer to find accommodations that, while perhaps imperfect, are reasonable and sufficient.

Employees cannot be punished for raising complaints regarding safety concerns, OHSA, and their human rights under the Code.

If you complained that you were not being accommodated for a disability-related need or that the workplace was unsafe and you were subsequently reprised against — for example, by having your hours cut, wages docked, or getting terminated — you should see an employment lawyer immediately as this is illegal.

Can I be terminated if I have to stay home due to COVID-19?

Many employees have very real concerns about their ability to safely return to work. Despite this, workers who refuse to come into work risk being punished or even terminated for insubordination or job abandonment. To avoid that, you should be collaborating with your employer about your concerns, any accommodation needs you may have, and what you feel comfortable doing.

You have the right to be accommodated on the basis of various human rights grounds and you have the right to a safe workplace. Open and honest communication is often the best way to proactively resolve workplace conflicts.

Employees who are unwilling to return to work can take an unpaid, job-protected Emergency Disease Leave. This provincial leave of absence allows you to take time off work that, while unpaid, cannot result in your termination. This may be desirable for individuals who have jobs that requires to them attend work in person, but feel that no level of job modification or accommodation would allow them to safely return to work.

Employment lawyers at Monkhouse Law specialize in wrongful termination and are experienced in negotiating and resolving employment law matters in your best interest. If you have been wrongfully terminated, call us today for a free 30 minute consultation.

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