Our human rights legislation is very clear: you cannot discriminate on the basis of citizenship or country of origin, so you should never have a field on your application form that asks where they're from, you should never be asking whether they are Canadian citizens, and you should never ask that in the hiring process at all.
Stuart Rudner here with a Rudner Law COVID-19 employment law video update.
I’m recording this from my home office and not from the Hockey Hall of Fame in Downtown Toronto where I would really like to be, but we are doing our best to comply with the government guidelines to self-isolate and the nice thing is our firm is paperless and very tech savvy so it’s quite easy for us to work remotely. Which is great, because over the last week we have been inundated with questions and inquiries about COVID-19 and how it impacts the workplace.
We are doing our best to work with our clients in order to help them understand their rights and their obligations in these unprecedented circumstances. We’re also trying to get a lot of information out there to the general public which is why I encourage you to check out our social media platforms and most importantly, check out our blog, we’ve developed a running blog where we are constantly updating anything to do with COVID-19 and the workplace. The purpose of this particular video update is just to give you a couple of highlights. All details can be found on our blog, but there are a few things I want people to be aware of because frankly there are so many myths and misconceptions out there and people are going ahead and making decisions without really understanding their rights and their obligations.
We’re really encouraging our clients to work with their employees or their managers or whatever the case may be to figure out a way to address the economic impacts of COVID-19 but also minimize the impact upon the individual workers who are really in jeopardy depending on where things go from here. So I want to address first and foremost the biggest misconception and that is that contrary to popular belief, business in Canada do not automatically have the right to lay people off temporarily. I know that we hear all the time about companies, over the last week in particular, laying people off, whether it’s Air Canada or other companies, the reality is some companies are doing it, I can’t speak to those companies in particular, but what I can say is this: many of them have collective agreements, which give them the right to lay people off temporarily. Many of them have good contracts, which give them the same right.
As an aside, when we work with our employer clients we make sure that, where it’s appropriate, they have contracts which give them that right, but the reality is many companies don’t have it, and many companies right now are sending their staff home and they are either knowingly or unknowingly taking a risk. At the end of the day, their cost savings might actually be greatly eclipsed by the legal liability they’re assuming by temporarily laying people off and sending them home when they don’t have the right to do so.
So employers, do not assume that you can just lay people off temporarily. Employees, don’t simply accept it, if you are laid off temporarily. And I will add, I know that the Employment Standards legislation talks about temporary layoffs, it talks about how you can implement them, if you have the right. It does not give you that right. This is a very critical thing for people to understand. Constructive dismissal can be claimed if someone is temporarily laid off and the company did not have the right to do so.
A couple of other points I want to make: if you are still operating, we’re often asked whether you can send employees home, or certain employees home. So if you are operating, you can send people home if there is a legitimate health and safety risk. Of course as an employer, you have an obligation to provide a safe work environment. You can’t make assumptions or act on stereotypes, just because someone is of a certain national or ethnic background or racial background, or they’re from a certain country, you cannot just assume that they are a risk and send them home. But if they are, for example, exhibiting symptoms, of COVID-19, then yes that would be a legitimate reason.
The flip side is if you’re an employee and you’re being told to work, you cannot simply refuse because we have a pandemic going on, there must be legitimate and reasonable basis for that refusal. You do have a right to refuse unsafe work, but you’re going to have to show that it was unsafe. If you must stay home to look after loved ones, family members or if you must self-isolate and you’ve been ordered to, then you are entitled to do so and employers cannot discriminate. They also must accommodate, so if you have to stay home to look after a family member, your employer is going to have to accommodate that. The reality is that every single jurisdiction in Canada has its own Employment Standards legislation because employment is regulated provincially, not federally. Every jurisdiction has different leaves. Most of them have updated those leaves in the last week to address COVID-19 concerns.
Everyone’s a little bit different. Most people are concerned about two things. They’re concerned about 1) whether at the end of their leave, they won’t be able to go back to a job, and 2) how are they going to address the fact that they lose their income during that leave, in almost all cases. Alberta announced a 14-day paid leave in some circumstances, but for the most part leaves of absence are job protected, but not paid. So what we are encouraging our clients to do is work with their staff to find creative ways to see if they can be paid at least part of the time. Look at use of sick days, vacation days, even if they have not accrued yet, let people borrow ahead. Offer cash advances, or even employment insurance top ups, to try to help your staff, if you can.
On the issue of employment insurance, that is federally regulated, we’ve seen a number of changes already. The federal government is trying to adapt to address the unique circumstances we’re in. Service Canada has a special number it’s set up so you can call, find out whether you’re eligible or not. Important to understand that to be able to claim employment insurance benefits, at least efficiently, you will need a Record of Employment. Contrary to popular belief, record of employment does not mean you’ve lost your job, a record of employment must be issued if there is an interruption in earnings, so if you’re being sent home, you’re not being paid, you should get a record of employment, and you will need that to get your employment insurance benefits.
Last point I want to make is that if you are going to shut your doors, temporarily or permanently at this point, you need to be very much aware of your legal obligations, and as an employee you should not simply accept the fact that we have a pandemic and therefore you’ve lost your job.
You need to look after yourself because we don’t know what exactly is going to happen from here. So please take a look at our running blog, it’s at rudnerlaw.ca, we’ll update it as often as we possibly can. At the end of the day, your health should be your top priority, if you look after that then we’ll look after your workplace issues.
Take care and stay safe.