The provinces are opening back up and various guidance has been issued to employers regarding how to do so safely, but the virus still exists and it’s still contagious. Governments who have been encouraging people to stay home are now contemplating how to get people to go out when really conditions regarding the virus have not drastically changed. This juxtaposition will have an impact on workplaces.
Continue Reading Considerations for Employers as We Return to Work
A Guide for Employers during COVID-19
This 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 May 8, 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.
Many provinces across Canada have started the process of re-opening businesses. In Ontario, a select few seasonal businesses have been allowed to open this week with restrictions. These include seasonal businesses and some essential construction. Check out the Provincial News Release for the details.
While the list is still very short, we can be sure that, eventually, society will be back up and running, but it may look a little different.
Guidance from the Government
The Federal and Provincial governments have released an agreed-upon set of common principles to follow with respect to re-opening. The statement includes a commitment to support and monitor workplace protocols that are in place to keep Canadians safe at their jobs, and prevent the introduction and spread of COVID-19.
Further to this, the Ontario government has released a very detailed resource on the protection of workers, customers and the public from COVID-19. The guidelines are sector-specific and include workplace posters.
The Ontario government also launched a website where businesses can request a temporary rule or regulation change to help “remove obstacles and streamline Ontario’s ability to respond to the outbreak.”
Consideration For Employers
In addition to following any of the specific government guidelines noted in the links above, employers can start to think about some of the following:
For further information and resources on re-opening, we invite you to join us at our next free SpringForward webinar “Pivoting After Quarantine: Recalling, Restructuring & Rebuilding” on Wednesday, May 20th at 10:30 AM EST.
If you have questions about the legal impacts of COVID-19 on your business and workforce get in touch to schedule a consultation.
SpringLaw is super excited to share that Jessyca Greenwood has joined our team! Jessyca brings with her over a decade of experience as a trial lawyer with a focus on criminal law, professional misconduct, mental health advocacy, and the complex way these areas intersect with the workplace.
Jessyca’s skills as a fierce advocate will fuel our expanding litigation practice.
Through her busy practice, she brings a deep knowledge of the impact mental health has on businesses, workers, and employers, and will continue to broaden SpringLaw’s expertise in mental health advocacy, crisis management and workplace safety. Her experience with regulatory law and professional misconduct will support our executive and professional employee practices.
Jessyca’s tech-savvy and uber-efficient approach to her client matters syncs up with SpringLaw’s online virtual platform, and we are excited to grow our practices together.
We’re so thrilled to have her on board!
Jessyca can be reached at jgreenwood@springlaw.ca.
How Can I Afford Legal Advice?
Many employers are facing rock hard choices right now: layoff on shaky legal ground or go bankrupt? Let some employees go, but how to afford termination pay? Offer more than ESA minimums to get a release or risk a claim down the road?
Since early March 2020, we’ve found ourselves regularly telling clients what the technical legal answers are, and then we quickly move to the COVID-19 business reality solution. This new world order is not going away anytime soon and I fully anticipate some new law coming out of this unique moment. Employers cannot afford payroll but employees cannot mitigate their job loss in this job market – so everyone is turning to the pandemic economic crisis as the reason for paying less termination pay or for demanding more of a package. Courts will have to somehow reconcile these competing interests, each of which is based on the same underlying issues caused by COVID-19.
Now is the moment for businesses to get creative, think about what the world will look like in a year, and to consider what people they need on board to get there. Most business owners we’re talking to have already been knee-deep in doing just that. Most business owners have typically already spent hours trying to reconfigure the numbers for a reset before they contact us.
The Free Help
By the time we get the call, the typical client has already read through all the free info available:
But many businesses still need legal help for their snowflake issues.
The Self-Serve Option
In this hard cash crunch moment, employers are looking to more affordable options besides the traditional $400+ an hour legal advice. The quarantine has forced the business world to quickly move online and to get a lot more comfortable with online solutions, including legal solutions.
Hearing the demand for quick solutions for savvy business owners who prefer the convenience and speed of accessing legal guides and templates online, we launched Pivot DIY in early April. We sell this offering for $450+HST, intentionally low and affordable for small businesses needing to rightsize their workplace asap.
We see this as the way of the future – accessing legal help online, off-hours, at the user’s convenience. Business owners and entrepreneurs are increasingly turning to self-serve and DIY solutions, confident in their own ability to sort through the main stuff, and picking up the phone or sending an email to their lawyer for the more nuanced questions.
The reality is most businesses have far more legal issues in common that not. If you can get at that broad common info at a very affordable price, you can use your business sense for much of the rest. For the truly unicorn snowflake issues, lawyers are awesome. But there are some great options to consider before the unicorns arrive.
Whether you have unicorns at your door or you want a new way of accessing DIY online legal services, we’re here to help.
Unchartered Workplace Waters
For many entrepreneurs and small businesses, the impact of COVID-19 has resulted in unprecedented losses in a short period of time. It has been a time of incredible stress, uncertainty and countless questions about how you can stay afloat, best manage your team and, eventually, rebuild.
At SpringLaw, we have been navigating these unchartered waters with our employer clients. We know how small businesses have been struggling and how business owners are laying up at night wondering how they will see it through to the other side of this tremendous business disruption.
You Are Not Alone!
As an employer, you know you need to pivot and resize your business. You want to do best by your employees, your business model and your own employment.
You care deeply about your team and your “baby” – your business, along with your reputation and keeping a roof over your family’s head. You want to be ethical and empathetic, but know you must also be pragmatic and that your decisions must be legally sound.
You are likely thinking, among many other things:
You are not alone! Many, many businesses are grappling with these tough decisions. You know they need to be made, but you need a starting point, a roadmap and some guidance on how to navigate this challenging journey, while also managing a payroll cash crunch and a tightened budget.
Pivot DIY – A Budget-Friendly, Easily Accessible Solution for You!
To assist you through this unprecedented time, SpringLaw has launched a new business solution to help you survive and thrive – Pivot DIY. This toolkit gives small business owners and entrepreneurs the strategies, how-to guides and templates to help you weather the impact of COVID-19 on your business and workforce.
This solutions toolkit has been crafted by experienced, licensed Canadian employment lawyers. Designed for this moment of business uncertainty, Pivot DIY is a user-friendly, easy to read, up to date resource relevant to today’s business crisis.
What’s Included?
Templates Written by Ontario Lawyers:
Trusted How-To Guides and Resources:
Empowerment:
You’ve Got This!
Whether you want to go fully DIY with your pivot or you want a cost-effective headstart before speaking to a lawyer, Pivot DIY is available to you right now for an affordable, set price.
Pivot DIY empowers you to take back the direction of your business by providing you with the tools (scripts, templates, guides, checklists, information etc) you need to resize and rebuild in the new 2020 business landscape.
All this is available right now, at the budget-friendly, one-set price of $450+HST. You can gain access to all the templates, guides and other resources now and get to work right away on your pivot.
Click here to learn more about Pivot DIY, view our free COVID-19 resources, and immediately access your solutions toolkit.
Stay healthy, safe and well!
A Guide for Employers during COVID-19
This 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 May 8, 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.
By now the CERB (the Canada Emergency Response Benefit) has entered the common parlance but questions about this benefit still abound. Employers and employees are still puzzling over some aspects of this benefit. We address some of the confusion in this post.
Can I Get the CERB if I Quit?
We have come across several examples of people who would stand to make more money by not working and collecting the CERB than working and getting paid. Unlike EI, which is tied to your actual income, the CERB is the same for everyone, regardless of income level – it’s $500 a week for up to 16 weeks. This is making the CERB an option attractive to people like part-time workers or those making minimum wage who may work a full week for around the same amount of money.
Employees CANNOT get the CERB if they voluntarily leave their job.
In many instances, employees are refusing to work – even where work is available – because they feel that leaving their home and going to work is unsafe. These employees will not be eligible for the CERB. Similarly, employees who ask to be fired or laid off so that they can access the CERB would likely be seen as committing CERB fraud.
Eligibility Even if Work is Still Available
Some employees may have to leave their jobs – or some self-employed people may need to stop working – for reasons related to COVID-19 even where work is still available. These people will generally be CERB eligible because they will not have voluntarily quit, but have been forced to quit or stop working because of COVID-19.
In Ontario, those who are on the Infectious Disease Emergencies Leave will generally be CERB eligible. This includes individuals taking care of their kids because of school and daycare closures, those in quarantine or who are sick with COVID-19, or those caring for a family member sick with COVID-19.
Being in quarantine in this context means being in quarantine for a legitimate reason, on the advice of public health. An individual who does not have a reason to be in quarantine – for example, they just don’t feel safe going out – would not be in quarantine for the purposes of the CERB or the Infectious Disease Emergencies Leave. A legitimate reason would be something like having returned from abroad or having been in contact with someone with COVID-19.
Generally, in order to be eligible individuals must meet the following criteria:
Moonlighting or Earning Money While on the CERB
Moonlighting – or doing other work for pay – while on the CERB is at this point not allowed. This means that individuals still earning some income will not be eligible. To be eligible an individual needs to have NO income for 14 days in the initial benefit period and expect to have NO income thereafter.
This is a tough pill to swallow for many, like those who are self-employed and may still be able to earn some income but have lost the majority of their contracts, clients etc. We expect that this criterion may change.
More Info on the CERB
The CERB application is now online and has been available since Monday, April 6, 2020. Once an individual applies, they can expect to receive benefits within 10 days. The benefits can be retroactive to March 15, 2020, so a first payment may cover several weeks. Individuals need to reapply every 4 weeks.
The Government has an extensive Q&A about the CERB on their website.
If you have questions about government benefits or how to scale your workforce in light of the COVID-19 crisis, get in touch for a consultation or check out our online resource for employers, PIVOT DIY.
What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be reexamined.
The Occupational Health and Safety Act and Working From Home
In Ontario, section 3(1) the Occupational Health and Safety Act (“OHSA”) states that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”
So, in regular people speak, this means that if your employee is working in their own home OHSA does not apply.
In some sense this makes sense, but in other ways, it doesn’t. An employer cannot be expected to come into an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their worker in an environment – the worker’s home – that they have no control over.
Employers – even in offices where there may not be obvious health and safety issues like noxious substances or big machines – are generally required to make sure that exits are clear, that file boxes aren’t going to fall on anyone etc. These are the types of safety issues that could, presumably, also pose risks to workers who are in their own homes.
Workplace Violence and Harassment
The application of the violence and harassment provisions of OHSA makes more sense in a home environment. Workers who work from home are still expected to work with their colleagues, clients etc. In many cases, these interactions will likely be similar to face to face interactions one may have in an office – just less the risk of inappropriate touching. Workers could still be bullied or harassed virtually or over the phone. This can happen just as easily around the watercooler as on the company Slack channel.
Direction from Case Law
While direction from decision-makers is sparse, two decisions offer contradictory direction with respect to the application of OHSA to people working from home.
The Workplace Safety Insurance Appeals Tribunal (the “WSIAT”) stated in Decision No 2249/16, 2016 ONWSIAT 2410 that the “OHSA does not apply to work performed by an owner in a private residence”. In this case, the WSIAT was required to determine whether modified work offered to an injured worker to do at home was reasonable and safe, in spite of the fact that the work would not be covered by OHSA because it would be completed at home. The WSIAT found that the fact that work would not be covered by OHSA did not mean it was not safe.
This decision contrasts with an Ontario Labour Relations Board (the “OLRB”) decision Watkins v The Health and Safety Association for Government Services. This case involved allegations of workplace harassment and reprisal under OHSA by an employee who “worked remotely from his home office, but also travelled as part of his duties.” The OLRB allowed the complaint to proceed to a hearing. No non-application of OHSA argument was made. OHSA does apply to work done outside of a private residence, even if it is done outside of the office. For example, OSHA applies when an employee is travelling for work, attending conferences, working on a client site etc. Perhaps the fact that this worker travelled as part of his duties brought his complaint safely under OHSA.
Takeaways
As it stands OHSA likely does not apply to work done at home. However, given the unprecedented number of employees now working from home, and the lack of clear jurisprudence, this could change.
Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way.
You can access SpringLaw’s complimentary Remote Worker Policy here.
If you’d like to book a consult to talk about remote working issues in your workplace, get in touch.
Answers to frequently asked questions from employers regarding COVID-19 – the impact, rules and best practices for addressing the global coronavirus outbreak in the workplace. (Last Updated April 1, 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.