- Ross & McBride LLP has a comprehensive review of COVID-19 and Ontario Workplaces: Protecting Employees and Knowing Your Rights as an Employer.
- Torys LLP has broad-ranging guidance for organizations including on employer obligations.
- Community Legal Education Ontario has a FAQ on Employment and Work
Human Rights Issues
The Ontario Human Rights Commission has put out a policy statement on COVID-19. The section pertaining to employment reads:
The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.
Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.
An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.
Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).
Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.
Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employers should take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.
An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.
At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Development website for the most recent advice.
New Employee Leaves
On March 19, 2020, Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 which enacted new job-protected leaves for employees affected by the COVID-19 crisis.
For a summary of the changes, see one of these resources:
Layoffs due to lack of work are only available in limited circumstances, as detailed by Professor David Doorey in COVID-19, Layoffs, and Employment Standards: An Introduction.
Frustration and Termination of Employment
Ordinarily, employees whose termination entitlement are governed by the Employment Standards Act are entitled to notice of termination or termination pay under Part XV of the Act. However, there are regulatory exemptions in O. Reg. 288/01:
2(1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination ro termination pay under Part XV of the Act:
4. An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.
Employers relying on this section risk being non-compliant with section 55 if the alleged frustration is not established.