Employers must be mindful of wrongful dismissal during COVID-19
Monday, March 23, 2020 @ 11:14 AM | By Reshma Kishnani
If your employees refuse to report to work upon being requested to do so, employers need to understand why. Pursuant to the Occupational Health and Safety Act (OHSA) employers governed by the legislation have an obligation to take every precaution reasonable in the circumstances to protect their employees. Most employees who reasonably believe a condition in the workplace is likely to endanger their health or safety can refuse to go into the workplace.
Under the present state of emergency, if an employee feels their health and safety may be compromised due to the potential exposure to COVID-19 by reporting into work, there is a high probability this would be viewed as a reasonable belief.
Compelling an employee to report to work or face termination may open an employer to wrongful dismissal and human rights claims. To avoid facing legal proceedings, employers may wish to consider reviewing their business practices to determine how they can create conditions that are safe in the workplace amidst the pandemic, including remote working, flexible hours and accommodation with respect to travelling into work.
In addition, businesses may wish to consider the new financial aid package released by the federal government. The federal government recently announced that it will be providing billions of dollars in direct payments and billions in tax deferrals to Canadians in the face of COVID-19.
A large portion of the financial aid package is directed to establishing a program for those who do not qualify and are not eligible for employment insurance (EI) sickness benefits. These new benefits will be provided through Canada Revenue Agency under an emergency care/support program and are to be comparable to EI benefits which are to come into effect within a few weeks. Those who are not covered through the regular EI program because they are sick, have been quarantined or have to stay home to take care of family members who are sick, they will be able to tap into the emergency care/support program.
In addition to this, small business owners will be provided with a 10 per cent wage subsidy for three months to encourage them to keep their employees on payroll. Additional financial support and business credit programs are also being rolled out by numerous institutions with the support of the federal government.
To assist those who have young children and are required to stay home to take care of their children as a result of daycare and school closures there will be a boost in the Canada Child Benefit and amounts for those who qualify for the GST credit. As well, the tax filing deadline has been extended to June 1, 2020, with a deferral as to when any taxes owing are to be paid to Aug. 31, 2020.
While the timelines and implementation of these programs are still unclear, this announcement should provide some hope and encouragement to businesses and workers to collaborate their efforts to ensure their health is protected.
In the event businesses are unable to operate or sustain themselves under the current economic climate, they will be faced with the decision to downsize or to close completely, temporarily (and some possibly permanently). In doing so they will likely have to make the decision to temporarily lay off their employees (if agreed to) or to terminate their employment.
Employers should seek legal advice before they temporarily lay off or terminate their employees to ensure they understand the risks and costs associated with their decisions. These are uncertain times with unpredictable outcomes and unprecedented actions.
Reshma Kishnani is a litigation lawyer at Mills & Mills LLP, a full-service law firm, whose practice focuses on employment and estates matters. She can be reached at 416-682-7062 or firstname.lastname@example.org.
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