The federal government has passed Bill C-20, An Act respecting further COVID-19 measures, which makes changes to the  Canada Emergency Wage Subsidy (CEWS) program. For those so inclined, here is the full text of the Bill

New Criteria for Eligibility

Starting with period 5 (which began on July 5), employers will no longer have to show a decline in revenue of 30%. Most employers (as long as they meet the definition of eligible employer) will be eligible for the CEWS and will not need to show a revenue reduction of 30%, as was previously required.  

New CEWS Amount

For the first four qualifying periods (March 15 – July 4), the wage subsidy was 75% of the eligible employees pay to a maximum of $847 per week. The amount will now be different – generally lower – depending on the revenue reduction of the eligible employer. The new CEWS will provide a base amount and then a potential top-up of up to an additional 25% varying in cases where there is a greater revenue reduction. 

Instead of 75% all around, the CEWS will provide a base amount of 60%, 50% or 40%, depending on the qualifying period, where the revenue reduction experienced by the employer is 50% or more. Employers experiencing a revenue reduction of 50% or more will also be entitled to a top-up subsidy of up to 25%.

Where the revenue reduction is less than 50%, the base amount will be the employer’s revenue reduction percentage multiplied by a multiplier of 1.2 to 0.4 depending on the qualifying period. 

Eligible employers who were counting on the $847 amount for periods 5 and 6  (covering July and August) will receive that amount. 

Extension of the CEWS

The CEWS program has been extended until December 19, 2020. The criteria for period 10 – November 22 – December 19 – has not been released. 

Eligible Employees

Further details regarding paying the CEWS for employees who are on layoffs will follow in the Regulations. 

Takeaways

The changes are expected to spread the CEWS benefits more widely – though more thinly – across the economy. The new CEWS is fairly technical and requires some math! Call your accountants! Feel free to reach out to us for a consultation about the CEWS or re-opening your business. 

The state of emergency in Ontario ended on July 24, 2020. This means a new clock has started ticking for employers with employees on what were temporary layoffs but were then converted into deemed Infectious Disease Emergency Leaves (IDEL) by O. Reg 228/20. While this sounds confusing, basically if your employees are off work involuntarily (you told them to stop working vs. they asked to take a leave) then they have been on a deemed IDEL since March 1, 2020.

The end of the state of emergency means that the deemed IDEL will end on September 4, 2020.

The deemed IDEL provided protection to employers from the regular lay off timelines in the Employment Standards Act (ESA), as well as protection from constructive dismissal claims under the ESA for temporary reductions in hours or wages related to COVID-19.

Employees who were on the IDEL voluntarily, for example, those who needed to stop working in order to care for children while schools and daycare were closed, will remain on the IDEL until the circumstances leading to their leave change or until COVID-19 is no longer a designated disease under O.Reg 228/20.

So, what now? Employers will need to decide how they want to deal with employees who they may not be ready to recall by September 4, 2020. For some, a temporary lay off may be an option. A temporary lay off can last for 13 weeks or 35 weeks if benefits are continued. However, employers need to have the right to temporarily lay employees off in a valid written contract to do this legally.

Please check out our Guide for Employers during Covid-19 for more information or get in touch if you have questions about this September 4, 2020 deadline and the impact on your workforce.

Employer obligations to accommodate work refusals under the IDEL
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As workplaces re-open, employers are getting all kinds of objections from employees about coming back to work. Common among these are childcare responsibilities. While some daycares and day camps are operating, things are far from normal. What obligation do employers have to accommodate refusals to come back to work due to childcare responsibilities? 

Employee Protection Under the Infectious Disease Emergency Leave

In Ontario, employees who claim they cannot work due to childcare responsibilities may have job protection under the Infectious Disease Emergency Leave (IDEL). The IDEL provides job protection to employees who need to take a leave from work to care for their children whose school or daycare is closed because of COVID-19. The Ministry of Labour Guide on this leave also includes day camps being cancelled as a reason for the leave so we can be sure that the protection is meant to be expansive.  Continue Reading Family Status Accommodation in the Time of COVID-19

enforceability of specific termination provisions
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This Ontario Court of Appeal decision has been the talk of the town on all the Ontario employment law blogs and while we don’t like to be followers, we also wanted to make sure our readers did not miss this important decision. In Waksdale v. Swegon North America Inc. the Ontario Court of Appeal ruled on the enforceability of specific termination provisions in an employment contract, finding the “without cause” termination provision enforceable because of a flaw in the “with cause” provision. 

Courts frequently come up with new ways of invalidating employer drafted termination provisions that would restrict an employee’s entitlement to notice. The enforceability of termination provisions is what lots of employment cases are about. A properly drafted termination provision in an employment contract can significantly limit an employee’s entitlement to notice of termination. For example, a long service employee terminated “without cause” could be entitled to as little as 8 weeks or as much as 2 years of notice depending on the contract.  Continue Reading Employers Get Out Your Contracts: An Important Ruling on Termination Provisions

workplace violence and harassment
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When it comes to workplace violence and prevention, the federal government has been playing catch up with the provinces. Starting in 2017, the feds have been working on amendments to the Canada Labour Code (CLC) to more fully address workplace violence and harassment. While Bill-65 – snappily named An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 – establishing the amendments was passed in 2018, the changes had not come into effect nor had a date for their coming into effect been announced. New regulations were announced on June 24, 2020, which provide employers with more details regarding what will be required of them and setting out an effective date of January 1, 2021, for the changes. There are also requirements that employers need to meet before January 1, 2021. More details can be found on the government site here.   Continue Reading New Federal Anti-Workplace Violence and Harassment Requirements

internal vs external workplace investigations
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So you’ve received a harassment complaint from one employee about another employee. What do you do? Do you have to investigate?  Can you use your common sense and just discipline? Is the complaint clearly BS in the first place? What if the complaint is about a break-the-company level fraud by your CFO?

Workplace investigations are usually an unwelcome but necessary business diversion. Many employers would rather avoid them and will attempt, or seek counsel’s validation for, a quick and dirty alternative such as a quick-release termination of the alleged wrongdoer or relocation of the complainant. But these are not alternatives to investigating, are never the upfront solution and often fail to satisfy the legal obligation to properly investigate. These responses are more likely to expose an employer to greater liability.

A complaint of workplace misconduct needs to move quickly, and yet is no time for fast thinking. Employers should instead think carefully about the substance of the complaint, the impact on the involved parties and the business fallout if their response is the wrong one.  Continue Reading Do I have to hire a super expensive external investigator? Maybe. Maybe not.

We blogged about David Heller and his fight against Uber last May when leave to the Supreme Court of Canada was granted. You can catch up on the history and read that post here. If you’re a true nerd you can also watch footage of the arguments made in the Supreme Court here!  The Supreme Court’s decision has now been released.

A Brief History

Heller, a driver for UberEats, brought a class action suit against Uber in 2017 alleging that he was an employee under the Employment Standards Act, 2000 (“ESA”). Uber, in response to this suit, said that Heller could not sue in Ontario because of the arbitration clause in his contract with Uber. 

The Arbitration Clause

Putting aside the issue of whether Uber drivers are employees – entitled to things like public holiday pay, vacation pay, notice of termination etc. under the ESA – the suit became about the correct forum. Could Heller bring Uber to court in Ontario? Or did the arbitration clause in the contract with Uber apply? Continue Reading UberEats Driver Fight Stays in Canada

The CEWS, the CERB and Returning to Work
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As we look towards returning to work and re-opening businesses we thought we would re-visit the CEWS and CERB, both of which have recently been extended. 

The CEWS (Canada Emergency Wage Subsidy) continues to provide employers with a wage subsidy to bring employees back. The CERB (Canada Emergency Response Benefit) may be working against employers in some instances, where employees do not want to come back or serve to make more money by not working and staying on the CERB. 

Extension of the CEWS

The government has doubled the length of the CEWS program to now extend until August 29, 2020. Eligibility for the CEWS is broken down into periods, where an employer needs to demonstrate a specific revenue reduction for that period. Periods 5 (July 5 – August 1) and 6 (August 2 to August 29) are expected to require a 30% reduction in revenue, however, details have not yet been announced. Continue Reading The CEWS, the CERB and Returning to Work

A Guide for Employers during COVID-19

This GuideA Guide for Employers during COVID-19 sets out the key employment law issues to consider, as well as the government’s financial relief options to explore to get through this deep economic crisis.  (Last Updated June 19, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Terminating Employees for Inappropriate Behaviour
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In the wake of the killing of George Floyd and in the midst of protests and heightened awareness of anti-black racism across the world, two prominent Canadians have been “cancelled.”

Earlier this month Sasha Exeter, lifestyle blogger and influencer, called out Jessica Mulroney for “textbook white privilege.” Exeter explained, calling out Mulroney by name, that Mulroney took offence to her call to action for people with large public followings to use their platforms to address racial inequality and then proceeded to threaten Exeter and her brand.  Soon after Mulroney’s reality show, “I Do, Redo” had been cancelled by CTV, and Cityline, Good Morning America, Hudson’s Bay and apparently Meghan Markle, had all cut their ties with the star.

Continue Reading Cancel Culture at Work: Terminating Employees for Inappropriate Behaviour