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What are your rights as you return to work in the middle of a pandemic?

June 02, 2020

The Star talks to Louis Century about employment rights in the age of COVID-19

The Star spoke to Louis Century about employees’ legal rights that may be affected by COVID-19, including where an employee is temporarily laid off, is unable to work, or is being recalled to work because the employer is restarting operations.

Temporary lay off / Reduction in wages:

As the Star notes, employers with non-unionized workforces don’t normally have anything in their employment contracts giving them the right to lay someone off temporarily. That means that a non-unionized employee may have a choice between accepting the temporary layoff in the hope that they will eventually get their job back, or treating the layoff as permanent and seeking damages for wrongful dismissal.

Louis notes that a wrongful dismissal action might not be the best strategy for most employees during a pandemic:

Of course your choice is affected by the fact other good jobs are hard to come by now. “What’s an employee going to do — sue for wrongful dismissal because of the temporary layoff in the middle of a pandemic?” asks Century. “Most employees — practically speaking — are better off going on CERB (government benefits) during the temporary layoff and maintaining the hope of returning to work when things get back to normal.”

An employer might also cut wages or other terms of employment.  Those changes might provide a basis for a constructive dismissal claim, if they are a significant enough alteration of the fundamental terms of the employment contract. However, as Louis notes, what a court may view as “significant” may be different during a pandemic:

However, there are sizable legal uncertainties about how big the change has to be to meet the threshold of significance, says Century. “There are debates in the best of times about whether a 10% or 15% or 20% wage cut is constructive dismissal,” he says. “In COVID times, there is some suggestion those changes might be considered acceptable (by the courts).”

Job protected leaves

As we have explained elsewhere, an employee who is unable to attend work as a result of the pandemic may a right to one of the new job-protected leaves under the Employment Standards Act, 2000 or the Canada Labour Code.

While these unpaid leaves protect your job, that protection isn’t absolute.

“If the business goes under and there is no work to go back to, then that’s not a breach of your job protected leave,” explains Century.

Returning to the workplace

Employees have rights when it comes to returning to the workplace, include a right to refuse unsafe work.

Human rights legislation may also assist employees who have special needs to be accommodated, although how human rights legislation might be interpreted and applied in relation to the COVID-19 pandemic is unclear. Still, as Louis notes:

“If you have an employee and employer communicating about this issue openly and constructively, then they can often find practical solutions. But the employer’s response cannot be ‘my way or the highway’ if there’s a human rights issue.”

Read the entire article here.

UPDATE:  This article has been updated to address the impact of regulations passed by the government after the article was written.

Find out more about workplace rights in the age of COVID-19 on our COVID-19 Legal Resource Page.


Louis Century

Practice Areas

Employment Law, Human Rights Law