Infectious Disease Emergency Leave in Ontario

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Infectious Disease Emergency Leave

The Employment Standards Act was recently amended to include a new job-protected leave of absence to help workers who need to stay home for reasons related to the current coronavirus pandemic such as to quarantine or to provide childcare. The Infectious Disease Emergency Leave is intended to protect a worker’s job in the event that they are unable to work due to COVID-19.

(The Employment Standards Act provides for several job-protected leaves of absence available to employees and you can learn more about leaves of absence here).

According to the Government of Ontario, “employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease.”

Presently, COVID-19 is the only disease for which employees make take this specific leave of absence. While this leave came into effect in March of this year, it applies retroactively to the 25th of January, 2020.

All employees who are covered by the Employment Standards Act are entitled to take this leave of absence. As with other leaves of absence, an employee cannot be threatened, terminated or in any way penalized by their employer for taking or planning to take this leave of absence.

Leave Entitlement

As with all leaves of absence, there are specific conditions that must be met in order for an employee to take the Infectious Disease Emergency Leave. Employees may take this leave of absence if:

  • They are under investigation of or treatment for COVID-19
  • They are following a COVID-19 related order under the Health Promotion and Protection Act
  • They are in quarantine issued by a public health official, qualified physician or nurse, Telehealth Ontario, the Government of Ontario or Canada, a municipal council or the board of health
  • They are directed by their employer to stay home in response to their employer’s concern that they might expose other workers to the disease
  • They are caring for certain individuals (such as a spouse, parent or child) due to COVID-19
  • They are impacted by travel restrictions due to COVID-19 and are unable to return to Ontario

Infectious Disease Emergency Leave, Constructive Dismissal and Layoffs

On 1 June, the Ontario Government made changes to the Infectious Disease Emergency Leave to address the issue of non-unionized workers who had been laid off due to the pandemic. Under the new rules, workers who were laid off due to COVID-19 would now be deemed to be on this new leave of absence instead of being laid off. For some workers, this means that they will not be able to claim constructive dismissal, or severance or termination pay. What’s more, under these new regulations, employees can essentially be laid off indefinitely, whereas in the past, a temporary layoff became a termination after 13 weeks and would be accompanied by appropriate termination and, when applicable, severance pay.

Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.

Downsizing: A Legal Guide for Canadian Employers & Employees

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Downsizing is never a fun experience. Not for employers and certainly not for employees. For employees, downsizing means worrying about losing your job. For employers, it usually means that demand for your product or services has decreased and you need to reduce your workforce in order to stay open and profitable.

Regardless of the situation that has precipitated your need to downsize, it is important that, as an employer, you do so with caution, care and consideration. Failing to do so can cost you time, money and confidence from your remaining employees.

Assessing the costs of downsizing

Your first step when downsizing your workforce will be to determine how many people you will have to terminate. It probably goes without saying that you will want to terminate as few employees as possible. Naturally, you will not want to put any more people out of work than is absolutely necessary.

But you must also consider that terminating employees can be costly in terms of notice or termination pay, benefits continuance, severance pay and common law obligations. What’s more, if you find that you have fired too many employees and need more workers, the costs of recruiting, hiring and training new workers can be prohibitive. The knowledge and skills of long-serving employees is incredibly valuable and difficult to replace.

Temporary Layoffs

Given the potential costs of downsizing and the unpredictability of the market, wouldn’t it be wise to temporarily lay off your employees instead and then recall them should you need to?

Probably not.

The trouble is, employers have no common law right to lay off employees – it must be written into an employee’s contract or collective agreement. Furthermore, while a temporary layoff can delay your need to pay severance and notice, in the end it could cost you more should the temporary layoff exceed 13 weeks and become permanent.

Consider Morale

An oft-overlooked aspect of downsizing is the impact it has on the employees who remain. Seeing your coworkers let go (for reasons beyond their control) can be an unsettling experience. If handled poorly, downsizing may leave remaining employees feeling insecure about their own employment security and lead them to pursue alternative employment opportunities in the hopes of avoiding what they might interpret as their own impending termination.

Therefore, employers should avoid incremental downsizing. While reducing your workforce bit by bit may seem like a way to ease the blow, in reality, it is likely to put employees on edge as they wonder “am I next?” Your top talent may even begin to seek other, seemingly more secure, employment opportunities.

The best way to downsize smoothly and successfully is to communicate openly and honestly with your employees. Tell them why you need to downsize. You should also meet with each employee who is going to be terminated, provide them with reference letters and include a proper release.

Mass Terminations

In some unfortunate situations, large employers may have to lay off vast numbers of their employees all at once. In these situations, special rules apply regarding terminated employees’ notice entitlements.

Companies who dismiss over 50 employees in a 4-week period must give all these employees at least 8 weeks’ notice or pay in lieu thereof. Furthermore, the employer must complete the appropriate form and submit it to the Director of the Employment Standards Branch of the Ministry of Labour before giving notice to employees. This form must also be posted in your establishment during the notice period.

When over 200 employees are laid off within a four-week period they must all receive at least 12 weeks’ notice and if over 500 employees are being laid off, they must each receive at least 16 weeks’ notice.

Who to downsize?

This is often one of the trickiest questions facing downsizing employers. The good news is that, as an employer, it is your prerogative to terminate whoever you want as long as your terminations do not conflict with human rights laws or your collective agreement.

Seek Legal Counsel

Downsizing is always a difficult affair. It can also be exceedingly complicated from an employment law perspective. Navigating your obligations – both contractual and common law – is no simple task and any mistakes can be incredibly costly. Consulting with the employment law experts at KCY at LAW will ensure that your downsizing goes as smoothly and economically as possible.

Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.

Terminations and Sick Leave: What you need to know

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Can you terminate an employee who is on sick leave?

Yes.

Wait! Don’t click away from this post! There’s a little more to it than that!

As an employer, it is your prerogative to terminate any employee at any time and for almost any reason (more on that shortly) provided that you give them appropriate notice or pay in lieu thereof.

Leaves of absence do not protect employees from termination

You may terminate an employee who is on leave or planning to take leave just as you would any other employee, so long as your reason for terminating their employment is not because of their (intended) leave.

Poor performance or unavoidable downsizing or restructuring are perfectly legitimate and acceptable grounds to terminate any employee regardless of their health status.

Protections for employees

For all that employers may plan and anticipate, some things are out of their control. Sick leaves do not necessarily come at convenient times. The need for treatment does not schedule itself around workplace deadlines.

Employers must accommodate an employee’s need to take a sick leave. It can be difficult and frustrating, but you cannot simply fire an employee on sick leave for the inconvenience it may cause your business

As an employer, you must accommodate a sick employee to the point of ‘undue hardship’. This could mean modifying their hours or accommodating their need to take a sick leave.

Nonetheless, you may terminate any employee at any time and for any reason with two major prohibitions. Employment Standards and Human Rights Legislation prohibit the termination or punishment of an employee based on discrimination against a protected group (such as people with a disability or a pregnant person). Furthermore, an employee can not be terminated for exercising his or her legal rights (such as their right to take a sick leave of absence).

If a tribunal finds that your employee’s leave played even so much as a hint of a role in your decision to terminate them, you will be ordered to compensate the dismissed employee for damages suffered.

The case of Whitmore v. Dr. J.T. Kelsall Inc. provides a useful example of when and how you can terminate an employee who is on sick leave.

Whitmore v. Dr. J. T. Kelsall Inc. (2017)

In this case, a little over a year into her employment, Ms. Whitmore required corrective surgery for a medical problem and subsequently took a medical leave of absence. She was assured that her position as a medical office assistant was secure.

After several unsuccessful attempts to return to work, Ms. Whitmore was dismissed from her position. Whitmore filed a Human Rights Complaint that she had been discriminated against on the basis of medical leave due to a disability.

Her employer insisted that the termination was due to poor performance and presented evidence that demonstrated Ms. Whitmore’s competence had been raised as a concern at her performance review. What’s more, in her absence, her employer learned that Ms. Whitmore had improperly booked patients, failed to respond to consultation requests and had not faxed over 350 consultation reports regarding patient diagnoses, treatments and medication requests.

The tribunal decided that the evidence far outweighed the suspicious timing of her dismissal and Ms. Whitmore’s claim was dismissed.

Takeaway for employers

The optics of firing an employee on sick leave are not good. Questions surrounding the reason for the employee’s dismissal are almost bound to arise. As an employer, this puts you in the position of having to demonstrate the legitimacy of the termination.

To prove that your decision to terminate an employee has nothing to do with their sick leave, you will want to have ample, timely documentation to support your dismissal decision. You should be able to easily show that termination was on the table before your employee went on leave.

To protect yourself against claims of discrimination, employers should make sure they document poor workplace performance or behaviour as it occurs so that they have evidence to legitimize the termination of an employee who is on leave.

If it is too hard to clearly and incontrovertibly prove that your decision to terminate an employee was not related to their leave, you can always simply terminate them without cause and offer appropriate notice or pay in lieu thereof.

Before terminating an employee who is on sick leave, talk to the employment law experts at KCY at LAW. Our team can help you assess the situation, gather the necessary evidence and advise you of the best legal course of action. Call us at 905-639-0999 to book your consultation today!