Returning to Work during COVID-19 Hosted by CLEO in partnership - - PowerPoint PPT Presentation
Returning to Work during COVID-19 Hosted by CLEO in partnership with: John No , Parkdale Community Legal Services Emily Keene , Mobile Legal & Social Justice Initiative, Southwestern Ontario (a project of Mississauga Community Legal
Supported by:
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(justicepasapas.ca)
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Presented on July 28, 2020
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Feb 2020 June 2020 Canada 5.6% 13.0% Ontario 5.3% 12.4% Ottawa 4.2% 9.0% Toronto 5.4% 13.6% London 4.9% 12.6% Thunder Bay 5.3% 11.1%
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Canada Emergency Response Benefit The Benefit is available to workers:
eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits between December 29, 2019 and October 3, 2020;
2019 or in the 12 months prior to the date of their application;
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Canada Emergency Student Benefit The Benefit is available to students:
post-secondary education program in December 2019 or later OR have applied for post-secondary education program that starts before February 1, 2021;
19; and
CESB is not available to international students.
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In order to understand the landscape of your employment rights in the era of COVID-19 pandemic, we have to know what happened before COVID-19.
wage to $14 per hour.
paid sick days.
equal work based on employment status. Context
Rights to Refuse Unsafe Work
You can refuse to work if you have reason to believe that the physical condition of the workplace is likely to endanger you: If you do decide to refuse to work, you must report your refusal and your reason for the refusal to your supervisor or employer. Your employer must investigate your complaint. If you are unsatisfied with your employer’s response, you or your employer can contact the Ministry of Labour. The Ministry of Labour will then inspect the workplace. Rights to Refuse Unsafe Work
Ensure all high-touch tools and surfaces are cleaned regularly. For detailed information. Create distance between workers, keeping a distance of at least 2 metres from others, as much as possible. Reduce the number of passengers on elevators and avoid crowding in stairwells and other tight spaces. Give workers more opportunities to keep their hands clean, for example by providing soap and water or hand sanitizer if soap is not available. Ensure workers are using any required personal protective equipment appropriately. Schedule breaks at different times to avoid large groups. Hold meetings in outdoor spaces.
Rights to Refuse Unsafe Work
Human Rights Code protects employees from direct, indirect, or adverse effect/constructive discrimination based on personal attributes called “grounds”. Some of the grounds that may be more susceptible to discrimination during COVID19 pandemic are:
infections. Human Rights Code
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Emily Keene, Mobile Legal and Social Justice Initiative July 28, 2020
related to COVID-19
u Infectious Disease Emergency Leave u Declared Emergency Leave
u Sick leave u Family responsibility leave u Family caregiver leave u Family medical leave u Critical illness leave
u The ESA was amended on March 19, 2020 to include Infectious
Disease Emergency Leave.
u This leave’s entitlements are retroactive to January 25, 2020. u Purpose: u A job protected, unpaid leave for employees unable to
perform the duties of their job for specified reasons related to an infectious disease
uCurrently, the only infectious disease that applies is COVID-
19.
u Eligibility: if an employee is experiencing any of the following
circumstances due to COVID-19, making them unable to perform the duties of their job, they may take this leave:
u Employee is under medical investigation, supervision or treatment for COVID-19; u Employee is following an order issued under the Health Promotion and Protection
Act;
u Employee is in quarantine or is subject to a control in accordance with public
health information or direction;
u Employee cannot return to Ontario due to travel restrictions u Employee is directed to not work by their employer due to a concern that COVID-
19 could be spread in the workplace; OR …
u …Employee is providing care or support to any prescribed
individuals “because of a matter related to” COVID-19:
u Spouse (whether married or not), parent (and step parent,
foster parent), child (and step child, foster child, and child under employee’s legal guardianship), sibling and step sibling, grandparent and step-grandparent, grandchild or step- grandchild, siblings-in law, son or daughter in law, aunt or aunt, nephew or niece, spouse of employee’s grandchild, nephew, niece, uncle or aunt
u Also: any individual who considers the employee to be like a
family member, provided prescribed conditions, if any, are met (and currently there are no prescribed conditions);
u Also: any other individual also prescribed as a family member
(currently there are no additional people prescribed as family members)
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Retroactive to January 25, 2020:
u While the Infectious Disease Emergency Leave was introduced in March, 2020 – it
was deemed retroactive to January 25, 2020.
u Any employee who was unable to work from January 25, 2020 onward for any of
the prescribed reasons listed can retroactively designate that period of time to have been Infectious Disease Emergency Leave ( i.e. it is job protected leave) if they were fired because they could not work given their circumstances (or demoted, disciplined, etc.) then they need to be reinstated to their position, or
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Length of leave:
u There is no time limit to this leave. Rather, employee’s right to the leave ends
when their circumstances change, i.e. when they can get back into Ontario, when they access childcare, when the sister they are caring for recovers.
u The leave may also be taken sporadically as necessary, rather than for days or
weeks in a row. i.e. part days, whole days, multiple days or weeks in a row.
u On March 17, 2020 – the province announced a state of emergency given COVID-
19 that applied to the entirety of the province. This triggered many employers’
Leave to employees.
u While similar in purpose and function as Infectious Disease Emergency Leave,
this leave is triggered only when there is a declaration of emergency in part or all of Ontario.
u As of July 28, 2020, there are extended emergency orders currently in force
while the province continues its recovery, but the declaration of a state of emergency ended on July 24th.
u Should Ontario be put back into a declared state of emergency, then Declared
Emergency Leave would once again be a type of statutory leave that many employees will be eligible for.
u To be eligible to take Declared Emergency Leave, the following must be true:
u 1. There is a declaration of emergency in part or all of Ontario (for now, we are
not in a declared state of emergency anymore);
u 2. the Employee is unable to work because of one of the following
circumstances:
u There is a Government order that applies to them (e.g. entire industries and
non essential businesses were ordered to be shut down over the past few months); OR
u There is a Public Health Order in effect that applies to the employee (i.e.
medical personnel have the power to require individuals to quarantine); OR…
u …The Employee needs to provide care or support to certain family members u Includes: spouse (married or not), parent (or step parent, foster parent),
child (or step child, foster child), grandparent (step grand parent), grand child (or step grand child), the spouse of a child of the employee, sibling,
assistance.
u This list was expanded upon on March 19 to also include: a child who is
under the legal guardianship of the employee, step siblings, siblings in law, uncles and aunts, nephew and nieces, spouse of the employee’s grandchild, uncle, aunt nephew or niece; as well as people who consider the employee to be like a family member.
u Length of Leave:
u Like the Infectious Disease Emergency Leave, there is no set limit on the length of
time an employee can be off on this leave provided the employee still is eligible.
u The right to take the leave will typically end as well once the declaration of
emergency ends. An exception is when there is an order under the Emergency Management and Civil Protection Act that still applies to that employee
u i.e. while currently the state of emergency is over, the majority of emergency orders are
still in place that could affect many employees in the province. u Proving your eligibility to the leave:
u Your employer can require you to show evidence that you are or were entitled to
the leave, i.e. a note from your child care provider confirming that the services were closed; a copy of a medical personnel’s order for you to stay at home; the name of the relative you are caring for their relationship to you.
u Temporary Layoffs: Many employees were put on temporary layoff at some
point during COVID-19 as businesses slowed down or were ordered closed by emergency orders.
u Under the ESA, being laid off can only last so long (13 consecutive weeks or up to
13 non-consecutive weeks within a 20 consecutive week period) OR (up to 35 weeks in a 52 consecutive week period IF the employer provides supplementary employment benefits during the layoff). when employees are not recalled before the time is up, it is considered a termination and the employee has a right to termination pay.
u Constructive Dismissal:
u Many employees who had their hours cut or duties reduced because of COVID-19
complained to the Ministry of Labour that they were constructively dismissed. Typically, constructive dismissal occurs where an employee makes a significant change to fundamental terms of an employee’s work (like significantly reducing their hours) without the consent of the employee. Constructive dismissal means that the employee is owed termination pay.
u May 29, 2020 the Province passed a new regulation that changed all of this in
light of COVID-19.
u O. Reg. 228/20 says that any employee covered by the ESA who was
temporarily laid off due to COVID-19 is no longer on a temporary layoff. Instead, they are on Infectious Disease Emergency Leave.
u O. Reg. 228/20 also says that employees are not ‘constructively dismissed’
under the ESA if their employer temporarily reduces or eliminates their hours
u This new rule applies retroactively to March 1, 2020 and will expire 6 weeks
after the declared emergency ends.
u This new rule does not apply to unionized workers.
u In other words, this regulation was in light of the perspective that employers
are also in a vulnerable position because of COVID-19 and its effects on their businesses would have meant that many would be paying out large sums of termination pay.
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