ODHA Website > Post > COVID-19 Employment Resources

Employment information is subject to change as the government, federal and provincial, implement changes to address the economic effects of the pandemic here in Canada.

The ODHA communicates with our employment legal counsel, Piccolo Heath LLP, to provide up-to-date information pertaining to employment issues for employees and employers.   Visit Piccolo Heath LLP for detailed information on many employment topics or access the Piccolo Heath blog  for COVID-19 related employment resources.

The ODHA is not in a position to give legal advice in relation to your individual circumstances. If you have any questions, click here to access your FREE member benefit Legal-Line.


  1. Employment Standards Act Changes
  2. Employment Insurance Issues
    1. Maternity Leave Considerations
    2. Layoffs
    3. Independent Contractors
  3. Federal Government Financial Assistance for Employees
  4. Federal Government Financial Assistance for Employers
  5. Ontario Human Rights Commission Statement
  6. Occupational Health and Safety Act

1.  Employment Standards Act Changes
Piccolo Heath LLP, March 20th blog entry regarding the changes to the Employment Standards Act.

In an emergency session on March 19, 2020, the Ontario legislature passed Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020.  Bill 186 amends the Employment Standards Act, 2000 (the “ESA”) to provide support for provincially regulated employees including full-time, part-time, student, casual workers and temporary help agency assignment employees who are unable to work as a result of COVID-19.

Job-Protected Leave
The Act amends the Emergency Leave provisions of the ESA to provide an unpaid yet job-protected emergency leave for infectious disease emergencies such as COVID-19.  Under the revised section 50.1, employees are entitled to an unpaid leave of absence if they will not be performing the duties of their position for the following reasons:

  • The employee is under medical investigation, supervision or treatment related to COVID-19;
  • The employee is acting in accordance with an order under s. 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19;
  • The employee is in quarantine or isolation or is subject to a control measure (such as self-isolation) implemented as a result of information or directions related to COVID-19 issued to the public by a public authority or public health official;
  • The employee is under a direction not to work given by their employer in response the employer’s concern that the employee may expose other individuals in the workplace to COVID-19;
  • The employee is providing care or support to a “specified individual”, as defined in the Act because of a matter related to COVID-19 including, but not limited to, a school or daycare closure; or
  • The employee is directly affected by travel restrictions related to COVID-19 and under the circumstances, cannot reasonably be expected to travel back to Ontario.

Required Documentation
Employees must advise their employer that they are taking this leave of absence either before they take it or, if not reasonable to do so, as soon as possible after beginning it.  The Act expressly provides that a medical note is not required for an employee to qualify for or take this leave of absence.  However, employers may require an employee who takes the leave of absence to provide “evidence reasonable in the circumstances” to show that the employee is entitled to the leave “at a time that is reasonable in the circumstances”.  Such documentation may include a request for a note from a child’s daycare or evidence that an employee’s flight was cancelled by the airline in response to, or because of, COVID-19.

Length of the Leave of Absence
There is no legislated limit to the length of this leave of absence.  Instead, the employee is permitted to be away on the Emergency Leave as long as they fall under the circumstances and reasons set out above and the infectious disease is designated as an infectious disease for the purpose of the Act.

Retroactive Effect
Entitlement to the new/revised leave of absence is retroactive to January 25, 2020, the date of the first presumptive case of COVID-19 that was documented in Ontario.  This means that an employee may request this leave of absence from their employer for an eligible COVID-19-related absence from work from January 25, 2020 to the present day. 

 

2. Employment Insurance Issues
If your employer has closed your office and you are an employee, you may apply for EI benefits

The timing for the issuance of the record of employment (ROE) and your entitlements to EI benefits is governed by employment insurance legislation. Click here for more information.

A.  Maternity Leave Considerations
Cynthia Ingram, Senior Associate of Piccolo Heath LLP has answered some questions surrounding the issue of maternity leave. The following is her response.

Dental services and offices have not been ordered to close, but only to cease all non-essential services. The order came from the Royal College of Dental Surgeons of Ontario and not from Public Health.  As such, it is not an order under the Health Protection and Promotion Act relating to COVID-19. That said, in response to the order from the RCDSO, many dental offices have directed their employees to stay home. 

In the event of someone on maternity leave, who has exhausted all maternity leave and parental leave entitlements, who would have returned to work but is unable to do so because of the business closure, the following would apply:

    • The employee would be entitled to an unpaid but job-protected Emergency Leave under the new legislation brought in yesterday afternoon if they are required to provide care to their child because of a daycare closure.
    • The employee may be eligible for the Emergency Care Benefits introduced by the federal government which will be available beginning in April.
    • The employee may also be eligible for the new Emergency Support Benefit from the federal government, also to be available beginning in April. This is because those returning from maternity leave may not be eligible for regular EI benefits if they do not have the required number of hours worked to qualify.
    • When it comes to maternity/parental leave benefits, employees are not able to change between standard and extended parental benefit options once their benefits have been paid. They may, however, change the number of weeks they take within the option they have previously chosen and extend their leave so long as they don’t go over the maximum number of weeks for the options they chose.

For those employees who are scheduled to go on maternity leave, but have not yet begun their leave of absence, their entitlement to maternity and parental leave benefits remain as before. To the extent they are away from work prior to the commencement of their maternity leave, the following would apply:

    • They may be eligible for regular EI benefits.
    • The employee would be entitled to an unpaid but job-protected Emergency Leave under the new legislation brought in yesterday afternoon if they are required to provide care to their child because of a daycare closure.

It is important for all individuals to remember that applications for regular EI benefits, EI sickness benefits and the new Emergency Care/Support Benefits, will be subject to review and assessment by Service Canada.

B.  Layoffs
A few questions have been raised concerning the layoff process. We reached out to our legal counsel, Piccolo Heath LLP, and they have provided some answers. 

In general, employers need express authorization from the employee (usually in the employment contract or a collective agreement) to unilaterally impose a temporary layoff. If there is no such prior authorization, the employer can ask the employee to consent to a temporary layoff. Given the current economic and social climate, employees may be willing to provide consent.

An employer that unilaterally lays off an employee without prior authorization or consent risks being liable for constructive dismissal.  In rare cases, a Court will infer a right to temporarily lay off employees, such as where it’s a widespread industry practice – but this is the exception to the rule. 

The unique circumstances associated with COVID-19, including, but not limited to, the recommended and mandatory closures of non-essential businesses, will likely lead to an inferred right to temporarily layoff employees.

Given the extraordinary circumstances, it seems likely that a temporary layoff due to valid COVID-19 government directives and mandatory orders would NOT be considered a termination.

C.  Independent Contractors
If I am let go as an independent contractor, is that a layoff?

Independent contractors are not employees, so the ESA “layoff” provisions don’t apply. Businesses may decide to terminate the contractor’s engagement or temporarily stop requesting services, subject to any terms of any agreements with them.

They may be eligible to collect Employment Insurance, if they have paid into it and if they meet the other eligibility requirements.

With that being said, even though your employer has defined your relationship as an independent contractor, your employment status may be that of an employee. 

Canada Revenue Agency has a publication, Employee or Self-Employed? publication #RC4110.  This booklet outlines the criteria you need to meet to be an employee or to be self-employed.  This booklet is available at www.canada.ca.  You can review this information if you are concerned about your employment relationship. 

Service Canada, your employer, or you, can request a review of your employment relationship by  completing form CPT1, named “REQUEST A RULING AS TO THE STATUS OF A WORKER UNDER THE CANADA PENSION PLAN AND/OR THE EMPLOYMENT INSURANCE ACT”, and submitting it to your tax services office.

 

3.  Federal Government Financial Assistance for Employees
The Canada Emergency Response Benefit – CERB
For more information you can access the Piccolo Heath blog entry of April 1st, 2020 and the Canada.ca website. 

What is the Canada Emergency Response Benefit?
If you have lost income because of COVID-19, the Canada Emergency Response Benefit (CERB) will provide you with temporary income support.

The CERB will provide you with $500 a week for up to 16 weeks.

How to apply
The Government of Canada will begin accepting applications on April 6.  Applications must be submitted every four-week period in order to continue receiving the CERB.

Prior to April 6, individuals who are without work and are eligible for EI can continue to apply for Employment Insurance.

Important! If you are not eligible for Employment Insurance, find out how you can get ready to apply for the CERB through the Canada Revenue Agency.

Whether you apply online or by phone, the CRA wants to provide the best service possible to everyone. To help manage this, the CRA has set up specific days for you to apply. Please use the following guidelines:

 

Day to apply for the Canada Emergency Response Benefit
If you were born in the month of Apply for CERB on Your best day to apply
January, February or March Mondays April 6
April, May, or June Tuesdays April 7
July, August, or September Wednesdays April 8
October, November, or December Thursdays April 9
Any month Fridays, Saturdays and Sundays  

 

Eligibility
The benefit will be available to workers:

  • Residing in Canada, who are at least 15 years old;
  • Who have stopped working because of COVID-19 or are eligible for Employment Insurance regular or sickness benefits:
  • Who had income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and
  • Who are or expect to be without employment or self-employment income for at least 14 consecutive days in the initial four-week period. For subsequent benefit periods, they expect to have no employment income.

The income of at least $5,000 may be from any or a combination of the following sources: employment; self-employment; maternity and parental benefits under the Employment Insurance program and/or similar benefits paid in Quebec under the Quebec Parental Insurance Plan.

The Benefit is only available to individuals who stopped work as a result of reasons related to COVID-19. If you are looking for a job but haven’t stopped working because of COVID-19, you are not eligible for the Benefit.

What is the Canada Emergency Response Benefit?
The Canada Emergency Response Benefit provides temporary income support to workers who have stopped working and are without employment or self-employment income for reasons related to COVID-19.

The new Canada Emergency Response Benefit is paid in blocks of four weeks in the amount of $2,000, which is equivalent to $500 per week. A maximum 16 weeks of benefits can be paid.

The benefit is available from March 15, 2020, to October 3, 2020. You can apply no later than December 2, 2020. 

How do I know whether to apply for EI benefits or the Canada Emergency Response Benefit?
If you have stopped working because of COVID-19, you should apply for the Canada Emergency Response Benefit, whether or not are eligible for Employment Insurance. The Benefit is available for the period from March 15, 2020 to October 3, 2020.

Starting April 6, 2020, there will be a single portal to assist you with the application process.

Until then, Canadians who are eligible for Employment Insurance and who have lost their job can continue to apply for Employment Insurance.

If you applied for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.

In addition, for other EI benefits, including maternity, parental, caregiving, fishing and worksharing, you should also continue to apply.

If I would be entitled to more than the $500 per week under Employment Insurance, will I get the higher amount?
No. When you apply for the Canada Emergency Response Benefit, you will receive $500 per week, regardless of what you may have been eligible to receive through Employment Insurance.

However, you retain your eligibility to receive for Employment Insurance after you stop receiving the Canada Emergency Response Benefit, and the period that you received the CERB does not impact your EI entitlement.

If I would have been entitled to less than the $500 per week under Employment Insurance, will I get the $500?
Yes. When you apply for the Canada Emergency Response Benefit, you will receive $500 per week, regardless of what you may have been eligible to receive through Employment Insurance.

For more information a comprehensive Q & A is available on the Canada.ca website.  Please click here for more information.

 

4. Federal government Financial Assistance for Employers 
The Canada Emergency Wage Subsidy – CEWS
For more information you can access the Piccolo Heath blog entry of April 1st, 2020 and the Canada.ca website. 

What It Means for Canadian Businesses
To help businesses keep and return workers to their payroll through the challenges posed by the COVID-19 pandemic, the Prime Minister, Justin Trudeau, proposed the new Canada Emergency Wage Subsidy. This would provide a 75 per cent wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020.

This wage subsidy aims to prevent further job losses, encourage employers to re-hire workers previously laid off as a result of COVID-19, and help better position Canadian companies and other employers to more easily resume normal operations following the crisis. While the Government has designed the proposed wage subsidy to provide generous and timely financial support to employers, it was done with the expectation that employers will do their part by using the subsidy in a manner that supports the health and well-being of their employees. 

Eligible Employers
Eligible employers would include individuals, taxable corporations, and partnerships consisting of eligible employers as well as non‑profit organizations and registered charities.

Public bodies would not be eligible for this subsidy. Public bodies include municipalities and local governments, Crown corporations, public universities, colleges, schools and hospitals.  This subsidy would be available to eligible employers that see a drop of at least 30 per cent of their revenue (see Eligible Periods). In applying for the subsidy, employers would be required to attest to the decline in revenue. 

Calculating Revenues
An employer’s revenue for this purpose would be its revenue from its business carried on in Canada earned from arm’s-length sources. Revenue would be calculated using the employer’s normal accounting method and would exclude revenues from extraordinary items and amounts on account of capital.

For non-profits and charities, the government will continue to work with the sector to ensure the definition of revenue is appropriate to their specific circumstances.

Amount of Subsidy
The subsidy amount for a given employee on eligible remuneration paid between March 15 and June 6, 2020 would be the greater of:

  • 75 per cent of the amount of remuneration paid, up to a maximum benefit of $847 per week; and
  • the amount of remuneration paid, up to a maximum benefit of $847 per week or 75 per cent of the employee’s pre-crisis weekly remuneration, whichever is less.

Further guidance with respect to how to define pre-crisis weekly remuneration for a given employee will be provided in the coming days.

In effect, employers may be eligible for a subsidy of up to 100 per cent of the first 75 per cent of pre-crisis wages or salaries of existing employees. These employers would be expected where possible to maintain existing employees’ pre-crisis employment earnings.

Employers will also be eligible for a subsidy of up to 75 per cent of salaries and wages paid to new employees.

Eligible remuneration may include salary, wages, and other remuneration. These are amounts for which employers would generally be required to withhold or deduct amounts to remit to the Receiver General on account of the employee’s income tax obligation. However, it does not include severance pay, or items such as stock option benefits or the personal use of a corporate vehicle.

A special rule will apply to employees that do not deal at arm’s length with the employer. The subsidy amount for such employees will be limited to the eligible remuneration paid in any pay period between March 15 and June 6, 2020, up to a maximum benefit of $847 per week or 75 per cent of the employee’s pre-crisis weekly remuneration.

There would be no overall limit on the subsidy amount that an eligible employer may claim.  Employers must make their best effort to top-up employees’ salaries to bring them to pre-crisis levels. 

Eligible Periods
Eligibility would generally be determined by the change in an eligible employer’s monthly revenues, year-over-year, for the calendar month in which the period began. The amount of wage subsidy (provided under the COVID-19 Economic Response Plan) received by the employer in a given month would be ignored for the purpose of measuring year-over-year changes in monthly revenues.

  • For example, if revenues in March 2020 were down 50 per cent compared to March 2019, the employer would be allowed to claim the Canadian Emergency Wage Subsidy (as calculated above) on remuneration paid between March 15 and April 11, 2020.

The table below outlines each claiming period and the period in which it has a decline in revenue of 30 per cent or more.

Eligible Period
  Claiming period Reference period for eligibility
Period 1 March 15 – April 11 March 2020 over March 2019
Period 2 April 12 – May 9 April 2020 over April 2019
Period 3 May 10 – June 6 May 2020 over May 2019

 

For eligible employers established after February 2019, eligibility would be determined by comparing monthly revenues to a reasonable benchmark.

How to Apply
Eligible employers would be able to apply for the Canada Emergency Wage Subsidy through the Canada Revenue Agency’s My Business Account portal as well as a web-based application. Employers would have to keep records demonstrating their reduction in arm’s-length revenues and remuneration paid to employees. More details about the application process will be made available shortly. 

Ensuring Compliance
In order to maintain the integrity of the program and to ensure that it helps Canadians keep their jobs, the employer would be required to repay amounts paid under the Canada Emergency Wage Subsidy if they do not meet the eligibility requirements and pay their employees accordingly. Penalties may apply in cases of fraudulent claims. In addition, anti‑abuse rules will be proposed to ensure that the subsidy is not inappropriately obtained and to ensure that employees are paid the amounts they are owed. The government is considering proposing to create new offences that will apply to individuals, employers or business administrators who provide false or misleading information to obtain access to this benefit or who misuse any funds obtained under the program. The penalties may include fines or even imprisonment.

Interaction with 10 per cent Wage Subsidy
On March 18, 2020, the Prime Minister announced a temporary 10 per cent wage subsidy. For employers that are eligible for both the Canada Emergency Wage Subsidy and the 10 per cent wage subsidy for a period, any benefit from the 10 per cent wage subsidy for remuneration paid in a specific period would generally reduce the amount available to be claimed under the Canada Emergency Wage Subsidy in that same period. 

Interaction with the Canadian Emergency Response Benefit
An employer would not be eligible to claim the Canada Emergency Wage Subsidy for remuneration paid to an employee in a week that falls within a 4-week period for which the employee is eligible for the Canadian Emergency Response Benefit.

Employers who are not eligible for the Canada Emergency Wage Subsidy would still be able to furlough employees who will receive up to $2,000 a month. 

Government Assistance
The usual treatment of tax credits and other benefits provided by the government would apply. As a consequence, the wage subsidy received by an employer would be considered government assistance and be included in the employer’s taxable income.

Assistance received under either wage subsidy would reduce the amount of remuneration expenses eligible for other federal tax credits calculated on the same remuneration. 

How businesses will benefit from the Canada Emergency Wage Subsidy
Bruno and Tisha run a floral shop in Burnaby, British Columbia. They have four full‑time employees, each earning $800 per week, and 6 part-time employees, each earning $400 per week, for a total weekly payroll of $5,600. Bruno and Tisha have closed their shop and are only fulfilling online orders during this challenging period. They are keeping all of their employees on the payroll, paying them their full regular wages, despite their revenues being down by 30 per cent. Bruno and Tisha would be eligible for a weekly wage subsidy of $4,200 ($600 for each of their full-time employees and $300 for each of their part-time employees).

 

4.  Ontario Human Rights Commission Statement
The Ontario Human Rights Commission (OHRC) issued a statement on the COVID-19 pandemic urging Ontarians to keep human rights principles under Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and relevant international human rights treaties at the centre of decision-making during the coronavirus (COVID-19) pandemic. The OHRC and relevant human rights laws are recognizing the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19. Read the full statement here.

 

5.  Occupational Health and Safety Act
If you are concerned about your safety at your workplace, please click here for information.