Your employment questions answered

ei

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.

Note: the Canadian government will be replacing the Emergency Care Benefit and Emergency Support Benefit with the simpler and more accessible Canada Emergency Response Benefit (CERB).  

The CERB would cover Canadians who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures.  

The online portal for the CERB will not be available until early April. Canadians who are eligible for EI benefits can continue applying. However, once the CERB portal is open, workers who are otherwise eligible for EI may apply instead for the CERB.  

Canadians who are already receiving EI and EI sickness benefits will continue receiving those benefits and should not apply for the new CERB. If their EI benefits end before October 3, 2020, they may apply for the CERB once their EI benefits cease, if they are still unable to return to work due to COVID-19. 

Canadians who have already applied for EI and whose application has not yet been processed would not need to reapply. Canadians who are eligible for EI regular and sickness benefits would still be able to access their normal EI benefits, if still unemployed, after the 16-week period covered by the CERB. 

This taxable benefit would provide $2,000 a month for up to four months for workers who lose their income as a result of the COVID-19 pandemic. CERB payments will be issued every four weeks and will be available from March 15, 2020 to Oct. 3, 2020. 

The online portal to apply for CERB will be available in early April, and people can expect payments within 10 days.  

The CERB is not available to workers who have left their job voluntarily. 

 


 

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 in 13 weeks, if the layoff Is without continuing benefits, 35 weeks if your benefits are continued or if new employees are hired to do your job, than the layoff converts to a dismissal and you will be able to sue for wrongful dismissal damages.

You do no 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, than the collective agreement applies and you would not have the right to treat the layoff as a constructive dismissal and sue for wrongful dismissal.

 


 

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 are apprehensive about attending work. Now that most Ontario businesses are shut down this question has become academic for most, but only for the duration of the government shutdown.

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 ie sanitized, social distancing enforced, no one allowed in who has returned from another country, been near an infected person or who displays symptoms of COVID-19 themselves, the employee can refuse to work with impunity and could not be fired for that. If that is unclear, you should tell the employer that you view the workplace as unsafe and 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 it is unsafe, then you have a right to continue to refuse to work.  Given that Safety Officers are likely extraordinarily backlogged right now, you will have a long initial period before you potentially could be forced 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.

 


 

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, than 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 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 mor 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: The Canadian government has a few support programs in place to assist business owners at this time.  

One of the programs is the creation of a temporary, three-month wage subsidy program to help small businesses retain their workers.  

Businesses that have an existing business number and payroll program with the CRA, and with earnings and capital last year of less than $15 million are eligible.  

The program allows small businesses to reduce the amount their income tax remittances by the amount of the subsidy. According to the CRA, the subsidy is equal to 10 per cent of the remuneration paid between March 18 and June 20, 2020, up to $1,375 per employee and a maximum of $25,000 total per employer. 

To learn more, you can visit this website.  

In addition, the Canadian government will be replacing the Emergency Care Benefit and Emergency Support Benefit with the simpler and more accessible Canada Emergency Response Benefit (CERB).  

Workers who are still employed, but are not receiving income because of disruptions to their work situation due to COVID-19, would also qualify for the CERB. 

This benefit may allow your business to retain employees during these difficult times, and esnure that you are able to resume operations as soon as possible.  

To learn more about the CERB, please see the response to the gig economy question below.  

To learn about what else is available, such as work-sharing programs, you can visit 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. 

The Canadian government will be replacing the Emergency Care Benefit and Emergency Support Benefit with the simpler and more accessible Canada Emergency Response Benefit (CERB).  

The CERB would cover Canadians who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures. The CERB would apply to wage earners, as well as contract workers and self-employed individuals who would not otherwise be eligible for Employment Insurance (EI). 

The CERB would be a simpler and more accessible combination of the previously announced Emergency Care Benefit and Emergency Support Benefit. 

This taxable benefit would provide $2,000 a month for up to four months for workers who lose their income as a result of the COVID-19 pandemic. CERB payments will be issued every four weeks and will be available from March 15, 2020 to Oct. 3, 2020. 

The online portal to apply for CERB will be available in early April, and people can expect payments within 10 days.  

The CERB is not available to workers who have left their job voluntarily.  

 


 

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. See for instance the answer above to the question about gig economy workers.  

In addition, he can visit this wesbite 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.

The Emergency Care Benefit (at question 12) applies to people who stay home to take care of sick family members, and who do not qualify for EI sickness benefits. 

The Emergency Care Benefit also applies to parents with children who require care or supervision due to school or daycare closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.

Otherwise, respecting EI sickness benefits, the Government is waiving the one-week waiting period for those individuals in imposed quarantine that claim Employment Insurance (EI) sickness benefits. This temporary measure will be in effect as of March 15, 2020.

 


 

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.