Your COVID-19 employment questions answered

Canada Service centre documents that display Employment Insurance options are pictured in Ottawa on Tuesday, July 7, 2015. (Sean Kilpatrick / The Canadian Press)

Howard Levitt, Toronto employment lawyer and host of Employment Law on NEWSTALK 1010 answers your questions about how COVID-19 will affect your work and EI.

TUNE IN everyday at 10 AM to hear Howard Levitt join Jerry Agar and have your employment questions answered!
 


 

Q: How do I access EI Benefits? 

A: You can apply for EI regular benefits as well as the EI sickness benefit by CLICKING HERE and applying online. 

Given the necessary precautions that they are taking against COVID-19, Service Canada strongly recommends that individuals apply for EI online, and in not in person at their local Service Canada offices.  

As an alternative, you may also access their services by calling 1-800-O-CANADA. 

 


 

Q: How do I know if I qualify for EI benefits? 


A: You may qualify for EI regular benefits if: 

  • You have worked the required number of insurable employment hours in the last 52 weeks or since the start of your last EI claim.  

Normally, this number is between 420-700 hours. However, the number depends on the area you are in. To find out the specific number, you can visit this site:

  • You were employed in insurable employment; 
  • You are ready and capable of working each day; 
  • You lost your job through no fault of your own; and 
  • You have been without work and without pay for at least seven consecutive days in the last 52 weeks.  

To see the guidelines for EI eligibility, you can visit this website this site. However, the only way to know for sure is to apply.  

In addition, you may be eligible for the EI sickness benefits. These benefits provide eligible workers with up to 15 weeks of financial assistance.  

You may be eligible if: 

  • You are unable to work for medical reasons and have a medical certificate;  
  • You have not worked for a period of one week; 
  • Your regular weekly earnings from work have decreased by more than 40% for at least one week; and 
  • You accumulated 600 insured hours of work in the 52 weeks before the start of your claim or since the start of your last claim, whichever is shorter 

The need for a medical certificate and the one-week waiting period have been waived for individuals who are quarantined because of COVID-19.  

To see more details about the EI sickness benefits, visit this page.

 


 

Q: What is the Canada Emergency Response Benefit? Am I eligible?


A: The Canada Emergency Response Benefit (CERB) provides a new taxable benefit of $2,000 per month for up to 6 months (recently extended from the initial 4 month offering) between March 15, 2020 and October 3, 2020 to people who have stopped working due to COVID-19. 

Those who have stopped working after March 15, 2020 because of COVID-19 can apply for the CERB whether or not they are eligible for EI. Claims from those who became eligible for EI Regular or Sickness benefits on or after March 15, 2020 will automatically be processed through the CERB, and as of April 6 there is a single portal to process all applications from those out of work due to COVID-19. 

EI-eligible individuals who have lost their jobs for other reasons should continue to apply for EI Regular benefits, and other eligible individuals can continue to apply for maternal, parental, caregiving, fishing, and worksharing benefits through EI. 

People who have already applied for EI or who are already receiving EI should not apply for the CERB.

The CERB is available for people residing in Canada who: 

  • Are at least 15 years of age;
  • Did not quit their job voluntarily; 
  • Earned at least $5,000 in 2019 or in the past 12 months from employment, self-employment, or certain EI benefits; and 
    • Who have stopped working due to COVID-19;
    • Who are eligible for EI Regular or Sickness benefits; or
    • Whose EI Regular benefits have recently run out. 

For a first claim, an applicant must have earned no more than $1,000 for 14 or more consecutive days within the 4-week benefit period they are applying for in order to be eligible. 

For subsequent claims, an applicant must have earned no more than $1,000 for the entire 4-week benefit period. 

Workers for whom the CERB is available include (but are not limited to):

  • Those who have been let go from their jobs or whose hours or income have been reduced;
  • Those who are in quarantine or sick due to COVID-19;
  • Those who are away from work to care for others who are in quarantine or sick due to COVID-19; and
  • Those who are away from work to care for children or other dependents whose school or care facilities are closed due to COVID-19. 

Take note that people who quit their jobs voluntary are not eligible for the CERB. 

The CERB is accessible through a web portal or via an automated telephone line as of April 6, 2020, and applicants must re-apply for every benefit period. The benefit periods are:

  • March 15 – April 11
  • April 12 – May 9
  • May 10 – June 6
  • June 7 – July 4
  • July 5 – August 1
  • August 2 – August 29
  • August 30 – September 26 

Application days are staggered by birth month to avoid overwhelming the system. 

If born in:  Apply on: 
January, February, March Mondays
April, May, June Tuesdays
July, August, September Wednesdays
October, November, December Thursdays
Any month Fridays, Saturdays, Sundays

Eligible applicants should receive their benefit funds within 3-5 days through the direct deposit option. Via mail, funds should be received within 10 days. 

Information on repaying or returning the CERB in the event it was received by someone who later determined they are ineligible can be found here.

 


 

Q: If I am laid off because of COVID-19 but told I will be brought back what are my rights?


A: If you do not choose to treat the layoff as a termination, you will be unable to later to do so. The Courts have said that employees have a “reasonable time” to decide but have not defined what that time is. The point is, you should make your decision relatively shortly after being laid off.

If you are told you will be brought back but you are not recalled within 13 weeks of the end of the Declared State of Emergency (if your benefits are not continued during the layoff) or within 35 weeks of the end of the Declared State of Emergency (if your benefits are continued), or if new employees are hired to do your job, the layoff converts to a dismissal and you will be able to sue for wrongful dismissal damages.

You do not have the right to treat a government-imposed shutdown resulting in your layoff for the period of the mandated shutdown as a constructive dismissal. 

If you are in a union, the collective agreement applies, and you do not have the right to treat a layoff as a constructive dismissal or sue for wrongful dismissal.
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You can hear employment lawyer Howard Levitt on the Jerry Agar Show every day at 10 AM

 


 

Q: Can I refuse to go to work because of COVID-19 concerns?  Will I still get paid? Can I get fired if I won't go in?


A: Many employees remain apprehensive about attending work, particularly now that many businesses have been given the green light to reopen and are calling their laid off workers back.
For those who are required to go to work, the best advice is to ask your employer for consent to work from home, or, if that is refused, for an unpaid leave of absence. If the employer does not ensure a safe workplace (i.e. sanitized, social distancing enforced, no one allowed in who has returned from another country or been near an infected person, or who displays symptoms of COVID-19 themselves) the employee can refuse to work with impunity and cannot be fired for that. 

If it is unclear whether your workplace is safe, you should tell your employer that you view the workplace as unsafe, specify why, and ask that a Ministry of Labour Safety Officer attend the workplace and provide an order. If they rule it is safe and you refuse to work, you could be fired for an unauthorized leave of absence. One would hope that your employer, for branding or ethical reasons, would not fire you, but it is a legal risk. If the Safety Officer says that the workplace is unsafe, then you have a right to continue to refuse to work. 

 


 

Q: I think I was fired because I refused work for health and safety concerns. Now what? 


A: S.50(1) of the OHSA forbids reprisals for acting on rights under the Act. The employee can file a complaint with the Board (S.50(2)). 

An employer has an obligation to provide a safe workplace for their employees.  

If you have reason to believe that the conditions in your workplace are dangerous, or you have been asked to perform a duty that could be dangerous to your health and safety, you may refuse to attend work or to perform the duty.  

If you did that, and your employer fired you for refusing to work, you may have been wrongfully dismissed. In that case you should get legal help as you may be entitled to severance and other remedies.  You should follow the process in the previous section above and ask that a Health and Safety Inspector be called by your employer to the workplace.

However, as stated above, remember that your employer is allowed to require you to work as long as they have taken the necessary steps to provide a safe working environment. 

 


 

Q: Do I need a ROE (record of employment) to access benefits in this situation? 


A: You do not need your ROE to apply for EI benefits. In fact, you should apply for EI as soon as possible, whether or not you have it. If you wait more than 4 weeks to apply for EI, you may lose the benefits.  

However, you will need to provide your ROE as a supporting document for your application.  

If your employer has issued you a paper ROE, you must provide a copy to Service Canada. 

If your employer has submitted your ROE electronically to Service Canada, you do not have to provide it to Service Canada. To see if an ROE has been issued electronically for you can visit (or create) your My Service Canada Account at this website My Service Canada.

If your Employer refuses to issue the ROE, you should contact Service Canada. You can use this form to have Service Canada request the ROE from the Employer.

If you are applying for the CERB, you do not need your ROE. 

 


 

Q: I have to close my business because the province said so.  I don’t want to be sued!


A: If you are ordered to close, then you are at no risk of being sued for laying off employees during the period that you are ordered to close. That is called the defence of legal “frustration”.

 


 

Q: I think it was pretty opportunistic I was let go at this time.  Do I have any recourse on this?


A: It may well be opportunistic. Many dismissals, and layoffs now, are. But if you are dismissed (or laid off in the absence of an employment contract or company practice permitting this), you can sue for wrongful dismissal, which has always been your right and the employer is no better off as result of doing it now.

 


 

Q: I’m unionized - how does that impact me and my rights to get benefits?


A: A unionized employee is subject to the provisions of their collective agreement and the preparedness of the union to fight for them. Union leaders have tremendous discretion as to whether to take on a particular case and, at a time where more members are grieving, they have even more right not to take every case to arbitration.

Another disadvantage of being unionized is that you cannot sue for constructive dismissal in the event of a layoff. The employer has the right to lay you off. There may be some notice or seniority protections as to who gets laid off or when – or there may not be.

 


 

Q: I own my own business and rely on customers for business. Nobody’s calling.  Do I qualify for any help? 


A: You may qualify for the newly-announced Canada Emergency Wage Subsidy, which could help you keep your workers on payroll.  

The initial eligibility criteria set when the program was first rolled out apply to the first four claim periods, while updated criteria apply for claim periods beginning on July 5, 2020. 

For the period between March 15, 2020 and July 4, 2020, employers can apply for a subsidy of up to 75% of employees’ wages to a maximum of $847/week for up to 24 weeks (extended from the initial 12-week offering). For the period between July 5, 2020 and August 29, 2020, the amount of the subsidy will vary according to the employer’s need, measured in relation to their drop in revenues. 

The federal government is also currently contemplating a further extension of the program to December 19, 2020. 

The claim periods employers can apply for are delineated as follows:

  • March 15 – April 11, 2020 (open)
  • April 12 to May 9, 2020 (open)
  • May 10 to June 6, 2020 (open)
  • June 7 to July 4, 2020 (open)
  • July 5 to August 1, 2020 (upcoming)
  • August 2 to August 29, 2020 (upcoming)
  • August 30 to September 26, 2020 (upcoming)
  • September 27 to October 24, 2020 (upcoming)
  • October 25 to November 21, 2020 (upcoming)

Eligible employers include individuals (including trusts); corporations; partnerships; not-for-profits and certain other tax-exempt organizations; registered charities, Canadian amateur athletic associations, and journalism organizations; private schools or colleges; and certain Indigenous government-owned corporations that carry on a business. Public institutions are not eligible.  

For the first claim period (i.e. March 15 – April 11, 2020), eligible employers must have seen a reduction of at least 15% of their baseline revenue (calculated as either the revenues earned in the corresponding month in 2019 or the average revenue earned in January and February 2020). For the second, third, and fourth claim periods (i.e. April 12, 2020 to July 4, 2020), eligible employers must have seen at least a 30% reduction in baseline revenue to qualify. 

For the purpose of determining whether an employer meets the 15% and 30% eligibility thresholds, revenues are calculated using the employer’s normal accounting method, which could be either the accrual method or cash method, but not both. Employers must use the same accounting method for the duration of the program. Revenues include revenue earned in Canada (such as amounts earned from selling goods and rendering services) from arm’s length sources and exclude revenues from extraordinary items and amounts on account of capital. For future eligibility periods, any CEWS subsidy previously received will not count as revenue. 

For the first four claim periods, the amount of the subsidy is the greater of:

  • 75% of the amount of eligible remuneration paid to a maximum of $847/week; or
  • The amount of eligible remuneration paid, to a maximum of $847/week OR to a maximum of 75% of the employee’s pre-crisis weekly remuneration, whichever is less. 

“Eligible remuneration” can include salary, wages, commissions, fees for services, and other remuneration like taxable benefits. 

For the first four claim periods, employers cannot claim the CEWS for employees who are eligible for the CERB during the same period (i.e. those who have stopped work and who earned not more than $1,000 for at least 14 consecutive days in a given benefit period).

For the fifth claim period and onward, there is no minimum revenue drop required to qualify for the subsidy. Rather, the rate an employer’s revenue has dropped is used to calculate the amount of the subsidy they will receive. This sliding-scale subsidy consists of a “base subsidy” for any eligible employer whose revenue has declined during a given period and an additional “top-up subsidy” for eligible employers whose revenues have dropped by 50% or more during a given period. The maximum weekly base subsidy for period 5 is $677/employee, gradually declining to $226 over subsequent claim periods. The maximum top-up subsidy is calculated on the basis of the average decline in the employer’s revenue compared with the corresponding period in 2019 or in January-February 2020. The maximum total subsidy is $960/week for periods 5-6, gradually declining to $508/week in period 9. Additionally, employers are no longer required to determine which of their employees are excluded from eligibility because they could receive the CERB in the same period (though individual employees must still ensure that they do not collect both the CEWS and the CERB for the same period).

There is no overall ceiling on the total subsidy amount an eligible employer can collect. 

While employees must be receiving some form of payment from their employers to be eligible for the CEWS, they need not be performing work (though note that where an employee is not performing work, the subsidy for them will be calculated differently in claim periods 7-9). Employers are expected to make best efforts to top up employees’ wages to pre-crisis levels. If an employer is also using a Work-Sharing program, EI benefits received through that program reduce the amount available from the CEWS. The subsidy is available for both existing and new employees, provided the new employees deal with the employer at arm’s length. 

Further information about the CEWS can be found at this website.

Employers may also be eligible for the previously announced Temporary 10% Wage Subsidy. If an employer is eligible for the CEWS and the 10% wage subsidy for the same period, any benefit from the 10% subsidy reduces the amount available from the CEWS. 

The Temporary 10% Wage Subsidy is a 12-week program allowing eligible employers to reduce their required payroll deduction remittances to the CRA on employee wages. 

Eligible employers include individuals (excluding trusts), not-for-profits, charities, some partnerships, and some Canadian-controlled private corporations eligible for the small business deduction, that pay salary, wages, bonuses, or other remuneration to an eligible employee. 

The maximum subsidy for each eligible employee is $1,375, up to a maximum of $25,000 total per employer.

Businesses that are closed and not paying salary, wages, bonuses, or other remuneration are not eligible for the subsidy.

More information on this subsidy can be found at this website
 

 


 

Q: I was still on 6 months probation when this happened and I was laid off.  Now what?


A: If you were on a valid probationary term, i.e., it was worded correctly and it was agreed to before you came to work, i.e., at the time the terms were negotiated, then you can be laid off without recourse. That assumes the probationary term states that. If it simply says that you are on probation for x months, than the company still has to show that it had a good reason to terminate you and that it provided you a reasonable chance to prove yourself.

 


 

Q: I am part of the gig economy (Uber) do I qualify for EI? 


A: Generally, gig economy workers such as rideshare drivers are not considered employees and are not eligible for EI. 

However, the CERB (discussed above) is available to gig economy workers who have lost their jobs or income due to COVID-19, provided they meet the other eligibility criteria.  

 


 

Q: My son has been laid off and is 100 hours short of EI - what can he do? 


A: If your son does not qualify for EI, he may still be eligible for other benefits from the Canadian government such as the CERB (discussed above). 

In addition, he can visit this website and use the “Benefits Finder” tool to see what benefits he may qualify for.

Your son should also keep in mind that the number of insurable hours that must be worked to qualify for EI benefits varies depending on the unemployment rate in the region that he lives in. 

He should continue checking the minimum hours required for the region that he lives in at this website.
 


 

Q: I have to stay home to look after my kids/parents. Can I be disciplined for needing time off? What other provisions exist for staying home in these circumstances?


A: Absolutely not and firing or disciplining you in these circumstances would be a breach both of Premier Ford’s new legislative changes and the Ontario Human Rights code.

You could be entitled to reinstatement, backpay and additional damages, nontaxable, for breach of your human rights.

You may also be eligible for the CERB, discussed above.

 


 

Q: I was temporarily laid off and still expected to work 1 day a week. I was not given severance. Are they allowed to do that? 


A: No. A layoff, including such a reduction of your work hours, amounts to a constructive dismissal (unless your employment agreement expressly permits a layoff or you have acquiesced to a layoff in the past or are aware of the company practice of layoffs and recalls in the past). This is so despite the fact that the Employment Standards Act allows for layoffs of up to 13 weeks (without any pay or benefits) or 35 weeks (with benefits continued). At common law, a layoff is a constructive dismissal.  

You can either accept the layoff and hope to be recalled, or refuse to agree to the layoff and consider yourself constructively dismissed. You are entitled to a reasonable amount of time to consider your decision.  

If you choose not to agree to the layoff, you are entitled to severance. However, you should ask yourself whether you truly wish to be terminated and look for alternate employment, which is scarce, or whether you are more comfortable knowing you at least have a job for now. In the event your employer offers you your job back, you should accept it – if you do not, your wrongful dismissal damages will end at that time, diminishing your entitlements (possibly significantly) and leaving you without employment income.  

If you do agree to the layoff, be clear in writing to the employer, that you are only doing so under extenuating circumstances due to COVID-19 and will not agree to more layoffs in the future as a term of your employment.