How COVID-19 affects the workplace

Employment lawyer Sandra MacKenzie explains how the pandemic affects Nunavut workplaces

Businesses in the city of Iqaluit, seen here, and across Nunavut face employment issues related to COVID-19, writes lawyer Sandra MacKenzie. (Photo by Patricia Lightfoot)

By Sandra MacKenzie

The following summary addresses general issues for workplaces related to COVID-19. This information is focused on private non-unionized workplaces and is general in nature. Each workplace has its own unique circumstances. Furthermore, the questions and answers below are subject to change as the pandemic progresses. For specific issues, please seek legal advice.

What are my health and safety obligations as an employer?

Employers have a responsibility under occupational health and safety legislation in Nunavut to maintain a safe and healthy work environment for their workers. Any worker exhibiting signs of COVID-19 and anyone who has been advised by a health official to self-isolate or be quarantined must be advised by their employer to stay home.

For workers who are not exhibiting symptoms of COVID-19, the employer should have a plan in place that includes risk assessments and mitigation measures that allow for services to continue while minimizing the risk to the public. Guidance and tools for conducting a risk assessment are available on the Workers Safety and Compensation Commission website.

If an employee has no symptoms, is able to work and has not been ordered by health officials to self-isolate, rumours that they may have come into contact with someone with COVID-19 are not a good reason to ban them from the workplace. Employers may open themselves up to claims of constructive dismissal or breach of contract if an employee is capable of working but is told to stay home and is not paid.

Can an employee refuse to come to work?

An employee has the right to refuse to work in an unsafe work environment. Whether it is reasonable for an employee to refuse to work due to concerns about COVID-19 will depend on the nature of the workplace, the suspected safety risk, and the individual needs of that employee in the circumstances.

As of April 9, the chief public health officer in Nunavut has yet to indicate what types of worker are classified as “essential” during the pandemic. As such, each employer must make that assessment on their own.

Due to the seriousness of the threat of COVID-19, employers will need to be flexible when accommodating the safety concerns of their employees. If the employee can work from home, it is likely in the employer’s best interest to provide this option. Employees working from home are entitled to receive their regular pay and benefits.

Does an employer have to pay someone who is self-isolating down south?

If an employee cannot work because they are required by health officials to self-isolate pursuant to the order of the chief public health officer or be quarantined, the employer is not required to pay the employee. However, the employee may be eligible for the following:

• Sick leave benefits provided by the employer.
• Banked overtime, paid vacation time or unpaid sick leave for this period.

If an employee cannot access the above benefits, they may be eligible for Employment Insurance or other benefits. Canada has announced enhanced eligibility for EI and new emergency benefits for employees and for workers who are otherwise not entitled to EI. These benefits are discussed further below.

Can employees be temporarily laid off?

Many businesses find themselves in a situation where they no longer have a choice but to close their doors, either because they are ordered to by health authorities or because they have no customers. This may mean laying off employees.

While an employment contract may include layoff provisions, it cannot negate statutory obligations. The following applies to non-unionized employees only. Unionized employees need to consult their collective agreement.

• The Labour Standards Act in Nunavut allows employers to temporarily lay off their employees for a period not exceeding 45 days during a period of 60 consecutive days upon provision of written notice.

• Notice must include the expected date on which the employer will require the employee to return to work. This can be done without triggering notice or severance obligations. This of course is subject to any layoff provisions in the employment contract or collective agreement.

• It is possible to apply to the labour standards officer for an extension to exceed the 45 days in special circumstances provided that the employee will be recalled. If, however, the employer exceeds the 45 days or the time period specified in any extension order, the employee will be deemed to have been terminated and generally will be owed termination pay.

• Notice may also have to be provided to the labour standards officer depending on the circumstances of the terminations, the number of employees being terminated and timeframe of the terminations.

For federally regulated employers such as banks and airlines, procedures for laying off or dismissing an employee are set out in the Canada Labour Code. These employers can temporarily lay off employees without paying severance as long as the employee is being laid off for three (3) months or less. There are some exemptions and a number of other circumstances that may extend that period. While an employment contract may include layoff provisions, it cannot override statutory minimum standards set out in the Code.

Subject to an employment agreement, policy or collective agreement that says otherwise, layoff periods are generally unpaid. However, employees may qualify for employment insurance under new eligibility criteria implemented by the federal government for COVID-19 situations.

This information could change depending on the government’s response to employment issues in this unprecedented situation.

In a worst-case scenario, if a workforce adjustment or temporary layoff doesn’t solve the operational problem or financial impact of COVID-19, employers may be forced to look at permanent workforce reductions. It is important that employers understand that terminations in these circumstances will be considered “without cause” terminations and certain statutory and common law legal requirements will apply.

There is no exception as a result of COVID-19 that would reduce these requirements. In fact, under the common law, there may be an increased risk of a demand for longer notice periods as a result of the market and economic uncertainty arising from the COVID-19 crisis. Employers should review their employment agreements in order to assess severance liability before terminating employees.

Seek legal advice before taking any of these steps. The federal government has introduced a number of initiatives to try to avoid the situation where an employer needs to lay off or terminate employees. These are described next.

What is the federal government doing to aid employees and employers?

An emergency support benefit package has been unveiled by the federal government for employers and employees. The support package includes emergency care benefits for employees who are not eligible to collect employment insurance, as well as wage subsidies for businesses.

The Canada Emergency Wage Subsidy

For employers, the federal government has announced a new benefit: the Canada Emergency Wage Subsidy, or CEWS. This subsidy provides small and large business, registered charities and non- profit organizations with a subsidy that may cover up to 75 per cent of employee wages, up to $847 a week per employee, for 12 weeks, retroactive to March 15.

Employers who do not qualify for this subsidy may qualify for the previously announced Temporary Wage Subsidy of 10 per cent of remuneration paid from March 18 to before June 20. For more information on CEWS or the 10 per cent Temporary Wage Subsidy, click here.

The Northern Business Relief Fund

The Northern Business Relief Fund, or NBRF, provides short-term support, in the form of a non-repayable grant, for ongoing operational costs to small- and medium-sized territorial businesses affected by economic disruptions due to COVID-19.

The fund will provide eligible territorial businesses with short-term relief for operational costs in the form of a non-repayable grant ranging from $2,500 to a maximum of $100,000. The funding will cover a maximum period of four months, retroactive to April 1, 2020.

The NBRF is delivered directly through the Canadian Northern Economic Development Agency.

For more information on the NBRF, please consult the guidelines here.

Funding for Indigenous businesses

Canada has also announced $306 million in additional funding to help small- and medium-sized Indigenous businesses. This money will provide short-term, interest-free loans and non-repayable contributions through financial institutions that provide financing and other supports to First Nation, Inuit and Metis businesses. For more information on assistance for businesses, click here.

Canada Summer Jobs Program

The federal government also announced that private and public sector employers who hire summer students through the Canada Summer Jobs Program can apply for up to 100 per cent of the provincial or territorial minimum hourly wage for each employee. Employers that have applied to receive funding through this program are urged to contact their funding representative for further details.

The Canada Emergency Response Benefit

For individuals, the federal government has announced a new benefit: the Canada Emergency Response Benefit, or CERB.

This is a taxable benefit of $2,000 a month for up to four months for employees, including self-employed workers, who have stopped working because of COVID-19. To access this benefit, the worker must be able to show the government that they had an income of at least $5,000 in 2019 or in the 12 months prior to their application and will be out of work for at least 14 consecutive days in the initial four-week period.

Find more information on eligibility here. Service Canada and the Canada Revenue Agency (CRA) deliver this benefit jointly. Individuals can apply through one or the other, but not both. Anyone who has already applied for EI will automatically be enrolled in CERB. There is no waiting period and benefits will be paid by direct deposit or cheque

What is the Government of Nunavut doing to help small businesses?

Small businesses that gross less than $500,000 a year or employ fewer than 10 people may be eligible for a one-time $5,000 grant. This includes artists, craftspeople, and hunters and trappers. Information about this grant can be found here.

What are an employer’s obligations with respect to privacy and human rights?

Privacy laws limit an employer to collecting information that is reasonably necessary in the circumstances. Within the context of the COVID-19 pandemic, it seems reasonably necessary to collect some personal information about employees to ascertain the level of risk they pose to others in the workplace and to implement measures to satisfy occupational health and safety obligations.

An employer might ask the following questions without violating an employee’s right to privacy:
• Are you exhibiting any symptoms of illness?
• Have you had close personal contact with anyone exhibiting any of the symptoms?
• Have you travelled to an affected area?
• Have you been in close personal contact with anyone who has travelled to an affected area?

Employers should not target only employees of a certain race, religious background or ethnicity in this respect. Differential treatment of employees due to a perception that they may have COVID-19 or been exposed to the virus, or differential treatment of employees due to their race or place of origin may be a violation of human rights legislation unless the employer can show that it had bona fide reasons for such differential treatment.

In short, an employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and public health officials. Employers should give employees flexible options, such as working remotely when feasible, as good practice, and as an accommodation if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.

With respect to childcare, employers have a duty to accommodate an employee’s family status. What this means is that an employer cannot discriminate against an employee if they are forced to stay home to watch their kids because of school or daycare closures. However, employees also have a duty to co-operate. An employees must exhaust all possible solutions before asking their employer for a leave of absence.

An employer has a duty to accommodate an employee to the point of undue hardship. Employers must determine whether the nature of your role enables an employee to perform work from home and, if so, to provide you with remote work. Employers and employees must work together to determine if there are other arrangements for childcare that can be implemented, or if other adjustments to the job can be made. If there are no reasonable options available, an employee is entitled to unpaid leave to stay home and watch their children. In these circumstances an employee may be eligible for the CERB benefit.

This information is constantly evolving and is current as of April 9.

Sandra MacKenzie is a litigation lawyer at Lawson Lundell LLP in Yellowknife.

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