Canada: A Guide to Prevent Collapse During Coronavirus

Erez Greenberg December 09, 2020
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    We have gathered information on what measures you can take as an employer in Canada to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.

    January 6, 2021

    The government announced that those returning from non-essential travel (i.e holiday travel) to Canada will no longer be eligible for the 500 CAD a week sickness benefit under the Canada Recovery Sickness Benefit (CRSB) intended to assist in covering for the need to quarantine upon arrival to Canada.

    December 9, 2020

    Manitoba- Manitoba has extended the COVID-19 Restrictions until January however, will loosen some restrictions that would allow families to gather for the holidays.

    Drive-in services will be allowed, so long that members of the same household are in the same vehicle and do not leave them.

    December 7, 2020 

    British Columbia – Lockdown expires today.

    November 24, 2020

    British Columbia- British Columbia announced that the lockdown will be extended to December 7, 2020.  This includes mandatory masks in pubic indoor spaces as well as limiting social gatherings to the members of one’s household.

    November 22, 2020 

    Toronto- Toronto will impose a 28- day lockdown starting Monday, November 23, 2020.

    • Indoor gatherings will be limited to members of the same household, outdoor gatherings will be limited to 10 people.
    • Retail stores will be able to offer pickup and delivery only, residents will not be able to shop in-store.
    • Pharmacies and grocery stores will be able to operate at 50% capacity

    November 9, 2020

    British Columbia – In Vancouver Coastal Health and Fraiser Health regions, new restrictions were announced and will be enforced for the next 2 weeks:

    • Social engagements with individuals outside of one’s immediate household are to be avoided
    • Businesses like gyms or physical fitness establishments must close
    • Religious gatherings are limited to 50 people

    September 13, 2020

    In Ontario, the government has announced that the Infections Disease Emergency Leave Regulation (IDEL) measures will be extended to January 2, 2021.  Any non-unionized employee who has a temporary reduction of work hours between March 1, 2020, to January 2, 2021, will be on job-protected IDEL leave.

    April 16, 2020

    The Canadian government has passed legislation called “Canada Emergency Wage Subsidy” that would subsidize employee wages by up to 75%.  The goal of this legislation is to prevent mass layoffs and will be retroactive from March 15, 2020 and will end June 6, 200. In addition, the CEWS would allow companies to re-hire otherwise terminated employees as a result of COVID-19.

    Eligibility

    • Employers who are individuals
    • Taxable corporations
    • Partnerships, non-profit organizations, and registered charities. To be eligible, these types of organizations must have seen a 15% decrease in revenue in March 2020 and 30% after.

    The amount an employer may receive for an employee that is eligible to receive must be the greater of the following scenarios:

    75% of their regular pay, capped at $847 CAD per week OR Up to $847 CAD of the regular pay or 75% of the regular pay before the COVID-19 crisis (whichever is less)

    To calculate the average weekly wages, wages paid between January 1st and March 15th and must exclude any 7 day period in which the employee was absent from work due to COVID-19.

    Refund on payroll taxes

    CEWS will also cover a 100% refund of some employer payroll taxes.  These include Employment Insurance, the Canada Pension Plan, the Quebec Pension Plan, and the Quebec Parental Insurance Plan.

    April 6, 2020

    Starting April 6th the Canada Emergency Response Benefit (CERB) will be accepting applications from individuals who have stopped working because of Covid-19 and are seeking temporary income support. Those who qualify can receive $500 for up to 16 weeks. Further details on eligibility and how to apply can be found on the Government of Canada site.

    March 26th, 2020

    Canada has mandated a 14 day isolation period for all travellers, including foreign visitors and citizens. Essential workers are excluded from this mandate.

    Employer and Employee Rights & Obligations Q&A

    Source: Baker McKenzie

    1. Are employees obliged to disclose themselves as a “risk-factor” to the employer?

    • Yes. Employees have a duty to report workplace hazards, including the possibility of an infectious disease, to their employer.
    • Employees should immediately report:
      • Symptoms (fever, cough, difficulty breathing, and other flu-like symptoms)
      • Travel history (as of March 16, 2020, the Canadian government has advised that travelers returning from any area outside of Canada should self-isolate for 14 days following their return)
      • Contact with, or shared space with anyone confirmed to have COVID-19, including conferences or events where one or more of the attendees was found to have COVID-19 within 14 days of attendance.
      • Any other information recommended by relevant health authorities

    2. Can the employer demand employees to disclose themselves as being a “risk-factor”? 

    • Yes. Given the rising risks of an outbreak, employers may enforce additional preventative measures and require employees to disclose their symptoms or exposure to the coronavirus. This does not require an employee to communicate whether they have been diagnosed, but rather whether they are at risk of having contracted Coronavirus or COVID-19 and therefore an occupational health and safety risk to others in the workplace.
    • Employers are still bound by privacy and human rights laws, and must be careful with how this information is used and stored. Such information must be kept confidential to the extent that this is possible, subject to potential reporting requirements to local authorities (see Item 8). Nevertheless, employers should notify specific employees who have been subjected to a substantial risk of contracting Coronavirus without disclosing the identities of the individual who may have caused the transmission risk. Individuals at risk should be notified of the date(s) and duration(s) of their potential exposure to the virus.
    • Employers should stay updated on public health advisories with regards to symptoms and who should be self-isolating.
    • Currently, employers may require employees to disclose the information outlined in item 1.

    3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer?

    • Yes, but such policies must adequately balance health and safety with individual privacy. Employers considering implementing such a policy should take the following precautions:
    • Limit geographic and temporal scope: the policy should only be offered if the site is located in a high risk area for COVID-19 transmission, or in which an employee was diagnosed with COVID-19. The policy should terminate when the risk subsides.
    • Invite but do not oblige reporting: consider phrasing the policy as an invitation to report on a co-worker, rather than an obligation.
    • Keep reports within the employer organization: the policy should have clear channels of communication, solely to the employer’s COVID-19 response coordinator(s).
    • Be aware privacy and human rights laws: the policy should include information on how such information will be handled, used, and stored. The employee that is the subject of the report must be notified, and the reporter’s identity should be kept in confidence unless otherwise required by law.

    4. Can employees refuse to come to work?

    • An employee can refuse to come to work if the employee has reason to believe that their working conditions are dangerous, hazardous or unsafe.
    • In the COVID-19 context, dangerous situations may arise based on risks to exposure to the virus, including:
      • A confirmed case of COVID-19 among the workforce; and
      • Confirmed exposure risks in the workplace as reported by employees or by public health officials.
      • Employers should understand risk factors for the virus’s spread, and seek further guidance about their obligations to immediately investigate workplace health and safety concerns and to ensure a safe workplace. These obligations vary between Canadian jurisdictions.

    5. Can employees refuse to attend meetings or to travel? 

    • An employees can refuse to perform work if the employee has reason to believe that their working conditions are dangerous, hazardous or unsafe. See Item 4 for more information.
    • As for travel, employers should be mindful of the most recent government advisories and orders. As of March 16, 2020, Canadian authorities have restricted almost all international travel to Canada, and have discouraged all non-essential international travel outside of Canada. While domestic travel has yet to be similarly restricted, the situation in Canada is evolving rapidly.

    6. Can the employer send employees on suspension from work? 

    • Employees may be placed on administrative leave if workplace health and safety is at risk because of factors including the employee’s potential exposure to the virus outside of the workplace, or risks for exposure within the workplace.
    • Administrative leave means that work is discontinued, but the employment relationship continues.
    • However, forcing an employee to take and extended administrative leave risks being found to be constructive dismissal, especially when administrative leave is without pay. This may entail liability for damages.
    • Therefore, employers should only require an employee to remain on leave as long as is necessary to eliminate the risk of infecting others, and make every effort to adapt to the changing reality, for example by expanding work from home capabilities.
    • Our government is currently considering adopting legislation that may impact this response in the near future.

    7. When is the employer forced to shut down its operations?

    • Employers may be forced to shut down operations if ordered to do so by national or provincial governments.
    • Employers are encouraged to follow public health advisories and prepare for alternative working arrangements and business models to slow disease progression while ensuring business continuity.

    8. Does the employer have the obligation to report infections occurring in the business to the health authorities?

    • Employers are generally not required to report confirmed cases of Coronavirus or COVID-19 to public health authorities, but should consider contacting the authorities for advice and to assist in preventing transmission during an outbreak.
    • Employers who operate in specified professions are required to report confirmed and suspected cases of COVID-19 to public health authorities, usually within 24 hours.
    • These professions primarily include those in the medical and health sector, and are defined in provincial public health legislation.

    9. Can the employer require an employee to see a doctor?

    • While in normal circumstances, employers may ask an employee to see a doctor for the purposes of managing the employment relationship, the capacity of the health care system will be strained by the coronavirus outbreak. Resources may be in short supply as the number of COVID-19 cases rises. Requesting a doctor’s visit may place an unnecessary burden on Canada’s healthcare system, and may further expose employees to COVID-19 while in close quarters with other patients.
    • Recourse to medical attention should be limited per recommendations by public health authorities, or in emergencies.
    • If an employee presents symptoms while at the workplace, employers may ask the employee to work from home during a period of self-quarantine/self-isolation as prescribed by government. Employers should also direct employees with symptoms to phone their local public health unit or doctor to receive further instructions on testing.

    10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid? 

    • Broadly speaking, employees who are unable to work are not entitled to remuneration. However, placing an employee on an extended administrative leave without pay risks constructive dismissal, which would engage liability for damages. See Item 6 for more details. Furthermore, after refusing work, employees are generally entitled to be paid until the employer completes an investigation in accordance with Occupational Health and Safety legislation.
    • If an operation is being permanently shut down, employers may be liable to employees for statutory and common law termination entitlements, which vary by jurisdiction. However, most jurisdictions provide for temporary layoff periods during which employers may be able to avoid termination entitlements.

    11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long? 

    • Employers have a duty to accommodate employees who are caregivers to their family under human rights legislation in each jurisdiction.
    • Employers must also consider the different statutory leaves available to employees to care for family members. These vary by jurisdiction.
    • Employers should try to extend work from home capabilities to allow employees to care for their families while continuing to work, especially if other care options are no longer available.
    • Where alternative work arrangements are impossible, employers may choose not to pay employees during a period of administrative leave.
    • Where necessary, employers may consider temporary dismissals or “lay-offs”, which are subject to different requirements depending on the circumstances. To rely on temporary dismissals, the employer must have a legitimate intention to recall the employee back to work.
    • In all cases, employers should direct employees to income replacement options such as employment insurance, worker’s compensation, or other measures that the government may put in place.

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