COVID-19 Workplace Continuity Update as of March 17, 2020

Amidst the COVID-19 crisis, our federal and provincial governments are introducing new measures on an unprecedented basis. Circumstances change daily. All latest closures and bans echoes our political leaders' directives on social distancing.

The cumulative effect of these measures is widespread disruption to the workforce. The most pronounced effect is the workplace being moved to employees' homes. For businesses where that is not an option, this disruption means work shortage, even leading to complete closure for some businesses.

As the situation continues to develop, it is important that employers review their business continuity plan at least once a day, and for employees to stay abreast of changing employment law considerations. As you do so, keep the following in mind.

  1. Most employers have now transitioned to work from home ("WFH"), where possible. Keep in mind, when working from home, employees are entitled to be remunerated as per usual. This is the case even if work from home results in low productivity. Employers may be exposed to liability if they do not take steps to provide a paid work from home option.
  2. Where productivity or workflow starts to drop below a certain level, it might be tempting for employers to rush to place employees on a temporary layoff. Is that advisable? Traditionally, temporary layoffs are not permitted unless they are specifically agreed to, such as when (a) a provision is expressly written in an employment contract allowing for a temporary layoff; or (b) an employee has been temporarily laid off before and accepted (never objected). If not specifically agreed to, then placing an employee unilaterally on a temporary layoff can amount to constructive dismissal. That means, the employer may be inviting itself to severance liability. That said, many employees are understanding of the circumstances, and would take a temporary layoff over termination. That is because a temporary layoff might avail employees to EI benefits. The moral of the analysis is that it is not clear cut. Take the time to evaluate risks, costs, and benefits. Speak to your employment lawyer. Figure out a plan that is both proactive and practical, and one that also is desirable to the other side.
  3. What about soon-to-start employment relationships? In addition to managing their current workforce, employers should think about any obligations they may have to new employees who are due to start soon. Onboarding new employees right now may logistical or practical difficulties. Address it as soon as possible can onboarding be done remotely, or does the new hire need to report in? For employers, do not rush to require new hires to report in prior to the commencement date unless an employment contract is already in place. For employees, the reverse may be true, consider reaching out to your soon-to-be employer regarding the start of your new employment.
  4. Related to the above, can an employer rescind or prematurely terminate an employment relationship that has yet to start? Not so fast. Doing so may give rise to severance entitlements for the employee meaning, liability for the employer. Employers should speak to your employment lawyer about these considerations before making any rash decisions. Often, a practical middle ground can be reached as an actionable business solution.
  5. Recall, employers have a legal obligation to ensure the health and safety of the workplace. Thus, employers are well advised to proactively encourage employees to provide feedback or raise concerns if there are any concerns to health and safety both at the traditional work premise where employees continue to report into work, and at their homes if WFH arrangements are in place. Employees should speak up if there are any concerns.
  6. Employers also have continuing obligations regarding confidentiality and privacy. Evaluate the WFH capabilities at least once a day. This includes not only the remote working technology, but also whether that technology can continue to safeguard the privacy and confidentiality of information being electronically transmitted through the WFH arrangement. If an employee comes across issues, raise it.
  7. If an employee is ill, isolated, quarantined, or otherwise unable to work due to COVID-19, the employee should be placed on a leave of absence. On March 16, 2020, the Ontario government announced proposed legislation that, if passed, will oblige employers to provide job-protected leave to employees who are affected by COVID-19. This law would apply retroactively from January 25, 2020. Employers will do well to proactively facilitate such leave to impacted employees.
  8. Currently, Ontario employers are not legally required to provide any paid sick leave and many do not. However, during these times, employers are encouraged to adopt a proactive approach and provide self-isolating employees with alternatives. Where employers are not financially in a position to offer pay while an employee is off on leave, proactively assist employees with employment insurance or other benefits, or discuss with employees about utilizing any banked time with pay. Note, employers may not require employees to use banked paid time or accrued vacation for sick days.

Conclusion:

With new emergency measures and guidelines being introduced daily, employers should closely monitor the situation and communicate openly with employees. As the severity of the pandemic continues to grow, it may be prudent for employers to err on the generous side and, where possible, provide paid sick leave and implement work from home measures.

On the flip side, employees play a corresponding role to exercise good judgment, stay up to date on current events and legal developments, safeguard or facilitate the continuity of the business, and generally follow public health directives.

A proactive approach will help employers and employees alike protect the workforce and the workplace. Lee Workplace Law can help.