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Month: April 2021

Long Term Disability Claim Denials For Covid-19 Long-Haulers

by Stacey R. Ball| | Employment Law| | General

With the rampant growth of the Covid-19 cases, there are more and more employees who have unfortunately contracted the virus and thus had to take medical leaves from their work.

For some people, the Covid-19 symptoms can last for weeks or even months. This condition can affect any one regardless of age or health conditions. Research shows that an estimate of 10% of Covid-19 patients become long-haulers. Due to the prolong symptoms and long-term fatigue, these long-haulers are often unable to work. To further exacerbate the matter, insurance companies are often reluctant to approve the long-term disabilities claims for Covid-19 long-haulers, which renders them in a precarious financial situation and forces them to plan for the worst.

In this blog, we will explore some common questions in connection to long term disability denials for these Covid-19 long-haulers.

Q: Who are Covid-19 long-haulers? What are their common symptoms?

The Covid-19 long haulers refers to those patients who has suffered the long-lasting coronavirus symptoms for months. The common symptoms usually include but are not limited to body aches, joint pain, shortness of breath, difficulty in sleeping, loss of taste and smell, and chronic fatigue. Due to these symptoms, most of the Covid-19 long-haulers are unable to go back to work.

Q: Can I take any proactive steps to ensure that my long-term disability claim is not denied by the insurance company?

First, you need to be in touch with your attending physician or family doctor so that they could get to know your situation. Then, you should closely follow your doctor’s recommendations, failing which the insurance company may deny your long-term disability benefits for non-compliance. In the meantime, you need to make sure that your insurance company receives your doctor’s letter or note, stating why you are unable to go back to work.

Q: How can I qualify for a long-term disability benefit under the long-term disability policy?

In most long-term disability policies, they provide benefits to the claimant for the first two years if you are unable to do all or substantially all of the tasks required by your current job. After two years, in order to continue enjoy the long-term disability benefits, you must be unable to perform any occupation that you are reasonably qualified for given your education, training or past experiences.

Q: Do I need to file a claim in order to receive long-term disability benefits?

Yes, it is required that you file a claim if you want to receive long-term disability benefits. If you are receiving coverage from your employer, contact your employer for instructions. Otherwise, you should contact your insurance provider.

Q: What should I do if the insurance company denies my long-term disability claim?

If your insurance company denies your long-term disability benefit on the basis that the policy does not cover long-term Covid-19 symptoms, you could contact your insurance adjusters and ask them where this is stated in the policy. This is often a trick played by the insurance company. As long as you cannot go back to work because of the long-lasting Covid-19 symptoms and you have a doctor’s report, letter or note to confirm that, you have a case. As this can be a complicated matter, it is advisable to consult a lawyer for guidance.

If you are experiencing any legal employment issues in connection to the Covid-19, Employment Lawyer Toronto, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

What You Need to Know About Vaccination in the Workplace

by Stacey R. Ball| | General

As vaccination roll-out has been implemented across the country to combat the spread of Covid-19 and reduce the community transmission, it has become a hotly debated topic whether vaccination in the workplace should be mandatory. In this blog, we will address some common questions employees may raise in connection to the vaccination policies at the workplace.

Q: Can my employer require me to be vaccinated against Covid-19 as a condition of employment?

The answer is no. Employers can recommend their employees to take the vaccine. However, they cannot compel them to do it.

Employees may refuse to get vaccinated for a number of reasons such as medical, religious or pregnancy reasons. Employers must accommodate these employees to the point of undue hardship. Otherwise, they will be found to be in breach of the relevant human rights legislation in connection to a prohibited ground of discrimination such as disability, religion and sex.

Q: Is there any law that allows employers to mandate vaccination in the workplace?

There is currently no provincial laws or public health guidance that allow employers to mandate vaccinations in the workplace. Employers could recommend this to their employees. However, they cannot force their employees to get vaccinated for work.

Q: Do I need to report to my employer on whether or not I have taken the vaccine?

No. Generally speaking, employers cannot compel their employees to disclose personal medical information such as their vaccination status.

However, certain employers with legitimate heath concerns are entitled to ask their employees whether they have taken the vaccine such as health care workers.

Q: Can my employer terminate me for cause if I refuse to take the vaccine or disclose whether I have taken the vaccine?

It is highly unlikely that employers could terminate their employees for cause only because they refuse to take the vaccine or disclose their vaccine status.

As termination for cause is considered as the capital punishment of the employment law, an employer has to get over a high hurdle to establish that it has just cause to dismiss an employee.

Generally speaking, an employer may terminate an employee for cause if the employee has been guilty of

a) serious misconduct;
b) habitual neglect of duty, incompetence or conduct incompatible with the duties;
c) wilful disobedience to the employer’s orders in a matter of substance.

The employer has the onus of proving cause for dismissal on the balance of probabilities. The employer cannot justify the termination for cause until it proves that the employee engaged in the misconduct on purpose and there is no alternative options other than terminating the employee.

Therefore, when an employee refuses to take the vaccine or discloses the vaccine status, it is difficult to argue that this behaviour amounts to a “serious misconduct” that justifies termination for cause.

Q: What options does an employer have to maintain the workplace safety if some of the employees refuse to take the vaccine?

Employers also have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act.

If some of the employees refuse to take the vaccine, employers can introduce alternative measures to foster a safe work environment. They could ask these employees to do one of the following:

a) To wear Personal Protective Equipment while at work;
b) To work from home;
c) To work at different hours or locations, if possible;
d) To undergo regular Covid-19 tests;
e) To take a leave of absence.

If none of these methods is feasible, employers could also consider terminating the employees without cause by providing them with reasonable notice or pay in lieu. This can be a tricky area. It is advisable to consult an employment lawyer for legal advice.

If you are experiencing any employment law issues in connection to the vaccination in the workplace, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

What You Need to Know About Family Caregiver Leave in Ontario

by Stacey R. Ball| | General

If one of your beloved family members has fallen sick due to the resurgence of Covid-19 cases, you may consider taking a family caregiver leave to provide care or support to them. In this blog, we would like to answer some common questions that employees have raised in connection to this leave.

COVID-19 has made it much more important for employees to understand their rights as it pertains to family caregiver leave. According to The Ontario Caregiver Organization, 35% of the Canadian workforce provide unpaid care to a family member or friend. As a result of COVID-19, there are 22% more caregivers. Of those, 52% say balancing their work and caregiving responsibilities has been made more challenging by the COVID-19 pandemic.

Family Caregiver Leave is available to employees in Ontario pursuant to section 49.3 of the Employment Standards Act, 2000.

Q: What is a Family Caregiver Leave?

Family caregiver leave is an unpaid leave available to employees who needs to take time off to provide care or support to family members who have a serious medical condition. An employee is entitled to a leave of up to eight weeks per year for each specified family member.

It is a job protected leave, which means your employer could not terminate or discipline you for taking this leave.

Family caregiver leave is not the same thing as a family medical leave. Family medical leaves are only available where a family member with a serious medical condition has a significant risk of death occurring within a period of twenty-six weeks.

Q: Am I eligible for Family Caregiver Leave?

All employees covered by the Employment Standards Act, 2000 are entitled to family caregiver leave regardless of whether they work full-time or part-time or are under a permanent or fixed-term contract. There is no requirement for minimum days that you need to have worked to take family caregiver leave.

In order to be eligible for this leave, you need to meet the following two requirements:

a)  A qualified health practitioner has issued a medical certificate, stating that the family member whom you are caring for has a serious medical condition.
b)  The specified family members are:

1.  Your spouse (including a same-sex spouse);
2.  Your brother or sister;
3.  A parent, step parent or foster parent of you or your spouse;
4.  A grandparent or step grandparent of you or your spouse;
5.  A child, step child or foster child of you or your spouse;
6.  A grandchild or step grandchild of you or your spouse;
7.  A spouse of a child of you;
8.  A relative of you who is dependent on you for care or assistance.

Note that family caregiver leaves are not available where the person requiring care is only “like” a family member. Although not available for family caregiving leave, leave taking to care for “like family members” is available elsewhere (i.e., for family medical leave, critical injury leave, and emergency leave: declared emergencies and infectious disease emergencies).

Q: Who is a qualified health practitioner? Can my employer ask for a medical certificate for this leave?

A qualified health practitioner refers to a person who is qualified to practice as a physician, registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual.

You do not need to have a medical certificate (i.e., a doctor’s note) before you start the leave. However, you should obtain the medical certificate soon after starting the leave.

You are eligible for this leave only if a qualified health practitioner issues a certificate stating that the family member that you are providing care for is in a serious medical condition. Therefore, your employer can ask you for a medical certificate (i.e. doctor’s note) to prove that this is the case. If there is no certificate, you are not entitled to take this leave.

Q: How many days can I have for a Family Caregiver Leave?

You are allowed to take up to eight weeks per year for each specified family member. A “week” is defined as running from Sunday to Saturday. You can take these eight weeks separately or consecutively.

You are allowed to take leave for a period of days in a week, meaning that it is not necessary for you to take the entire week from Sunday to Saturday off. You could, for example, take only Monday and Tuesday off, or Wednesday and Thursday. However, if you take these part days in a week, you are considered to have used up one full week out of your eight-week entitlement.

If you choose to take leave for only single days of the week, your employer is not permitted to then require you to take the rest of the week off as well. Your employer also cannot prevent an employee from working prior to taking a single day of the week off, and cannot prevent an employee from returning to work after taking a single day of the week off.

Q: Do I have to tell my employer in advance before I take a Family Caregiver Leave?

You should inform your employer in writing that you will be taking a family caregiver leave. Where this is not possible, you are allowed to begin a family caregiver leave before notifying your employer. However, you must inform your employer in writing as soon as possible after starting the leave.

If you do not take the eight-week leave all at once, you are required to provide notice to your employer with respect to each part of the leave.

Q: Can I get paid for a Family Caregiver Leave?

This is an unpaid leave. However, you employer could pay you, if it chooses to do so.

However, it should be noted that an employer cannot threaten, fire or penalize you in any form for taking, planning on taking, or being eligible or being in a position to become eligible for a family caregiver leave.

Q: How Does Family Caregiver Leave Compare to Other Forms of Leave?

Of course, family caregiver leave is not the only form of leave available to employees in Ontario. Family caregiver leave provides eight weeks’ leave, whereas family medical leave (s. 49.1 ESA) provides up to 28 weeks’ leave and critical illness leave (s. 49.4 ESA) provides up to 37 weeks’ leave for a minor and up to 17 weeks’ leave for an adult. Whichever leave is appropriate in your circumstances will depend on a number of factors including your relation to the sick person, how sick they are (i.e., the difference between a “serious” medical condition and a “critically ill” person whose life is at risk). In each of these three cases, however, a medical certificate is required.

If you are experiencing any issues in connection to your family caregiver leave, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

A Guidance on How to Maintain Workplace Safety During the Covid-19

by Stacey R. Ball| | General

Employers have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act. As the city of Toronto seeks to improve transparency amid continued rise in infections and strives to curb the community transmission of Covid-19 cases, it introduced new health and safety measures for workplaces.

In order to reduce the spread of Covid-19, employers are required to abide by the applicable Provincial legislations and follow the additional measures set out in Letter of Instructions to all employers issued by Toronto Public Health (TPH) on January 4, 2021. Where there is “sustained transmission” and “the workplace is large enough that the risks of privacy concerns are mitigated”, TPH will now public identify the location of outbreaks in workplaces on a weekly basis.

Measures to be Implemented to Reduce the Spread of Covid-19

These measures are designed to prevent the outbreak of Covid-19 cases in workplaces. All the essential workplaces continuing to operate amid the provincial lockdown are asked to follow them.

The measures issued by TPH involves three aspects, which are as follows:

a) Immediate Notification to TPH

  • Employers should immediately notify TPH as soon as they are aware of two or more people who test positive for Covid-19 at your workplace during the 14-day period.
  • Employers must designate a contact person to communicate with TPH effectively and ensure that accurate contact information for all workers is produced to TPH within 24 hours of request. They must cooperate with TPH personnel and facilitate their entry to the workplace for inspection.

b) Infection Prevention Measures

  • Employers should implement rigorous and frequent environmental cleaning in all high-touch areas and ensure hand sanitizer and hand-washing facilities are provided in work.
  • Employers should also conduct regular review of heating, ventilation and air conditioning (HVAC) systems to ensure that they are functioning well.
  • Employers should minimize instances of more than one individual in a vehicle for driving associated with work.
  • Employers should ensure that physical distancing of at least two (2) metres takes place at work and implement physical barriers.

c) Supports for Workers

  • Employers should ensure that all employees are fully aware of income replacement and workplace related benefits in order to encourage reporting of Covid-19 symptoms or contact among employees.

What to do if an Employee has Covid-19

TPH has also issued a workplace checklist on the essential steps to follow if someone in the workplace has Covid-19. Employers are advised to follow these recommendations so as to reduce the spread of Covid-19 in the workplace.

1. Create a safety plan;
2. Screen staff and keep attendance;
3. Send staff home if they are sick at work;
4. Confirm the employee is self-isolating at home;
5. Confirm when the employee’s symptoms started;
6. Identify close contacts of the contagious employees;
7. Maintain a daily log to support contact tracing;
8. Inform Toronto Public Health of 2 or more cases at the workplace within a 14-day period;
9. Clean and disinfect surfaces;

Employment issues in relation to the workplace safety during the Covid-19 can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are experiencing any employment law issues due to the Covid-19, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

What You Need to do if You are Laid Off by Your Employer

by Stacey R. Ball| | General

Employers have taken initiatives to downsize their businesses due to the economic downturns caused by the rampant Covid-19 cases. Therefore, large numbers of employees are placed on a temporary layoff by their employers. In this blog, we will address the issue of what you need to do if you are laid off by your employer. 

Understanding the Difference Between Laidoff and Termination

First, it is better for you to understand the difference between layoff and termination.

A layoff refers to a temporary cessation of work. If an employee is laid off, they will temporarily stop working for their employer with the employer agreement still intact. The employee is expected to be called back to work by the employer after a period of time. Unlike a layoff, termination occurs when an employer permanently severs the working relationship with its employees. Once an employee is terminated, the employer does not intend to call them back to work in future.

Check Employment Contract to See if Your Employer Has a Right to Lay Your Off

Then, you have to understand that you could be temporarily laid off by your employer only if the employment contract has specifically addressed this possibility and you have agreed to this term. Absent such a term, you may have a claim for constructive dismissal on the basis that you are laid off without an agreement to allow your employer to specifically do so.

Decide Whether to Accept It or Not

After checking your employment contract, you should make a decision as to whether to accept the layoff based on your personal situation, career plans and professional history. You may accept the temporary layoff, if you consider this as your dream job and wish to stay with the employer in the long run.

Talk to Your Employer and Put Everything in Writing

If you agree to a layoff without a contract term allowing the employer to specifically do so, you should talk to your employer and make it clear that you are doing so only in response to this specific situation. You should also follow the conversation with a letter, confirming that you are not agreeing to have a layoff as a term of your employment contract.

In this way, once your employer puts you on a temporary layoff again in future after recalling you back to work from this Covid-19 related layoff, you can refuse to accept this. You can consider the layoff as a constructive dismissal and claim a severance package from your employer.

Consult a Lawyer About Your Legal Rights

However, if you are prepared to end the employment, it is advisable to consult a lawyer about the constructive dismissal claims and the potential severance package that you may get.

You are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy. There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.

If you are experiencing any employment issues in relation to layoff, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

What You Need to Know About a Fixed-Term Employment Contract

by Stacey R. Ball| | Employment Contracts

In this blog, we will explore some common issues that a fix-term contract employee may have in their employment relationship.

Fixed Term vs. Indefinite Term

Whether a contract of employment is of a fixed or indefinite duration will often be a significant finding.

For the indefinite term contracts, the employment relationship is one of continuous service, which is intended to last for an indefinite duration. Once terminated, these employees are entitled to statutory or common law reasonable notice.

If a contract is for a fixed-term, the employee will be in a position to sue for damages on the basis of being prevented from working the entire term should the employer terminate employment before the expiry of the term.

The concept of reasonable notice of termination employment is inapplicable in these circumstances as the parties know at the contract’s formation when the contract of employment is to terminate, and damages will be assessed for the period remaining on the term of the contract at the time of the breach.

The Establishment of a Fixed Term Contract

Given that an employee could lose common law and statutory protections due to a finding of a fixed term contract, the court will require unequivocal and explicit language to establish such an agreement. Ambiguities will be strictly interpreted against the employer’s interest.

The court will be particularly vigilant when an employee works for several years under a series of allegedly fixed term contracts when the reality of the employment relationship is continuous service by the employee for many years, coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite term relationship.

In the case of Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801, three teachers employed under continuous one-year fixed term contracts were ruled to be indefinite-term employees. The Court found that the early termination and renewal provisions in the employment contract were ambiguous as to the duration of the term. The employer also made representations to the teachers that their contracts would be renewed on an annual basis. Moreover, the Court also found that the contracts of these three teachers were renewed for several years, which is another indicator of the indefinite-term employment.

Damages and Mitigation in the Fixed Term Contracts

In wrongful dismissal cases, the general rule is that the employee’s action is for damages and there is an obligation to mitigate damages. However, in the case of fixed term contracts, the Court ruled that employees are not subject to the same requirement, even where the contract is silent on the duty to mitigate.

Subject to an enforceable early termination provision, a fixed employment contract obligates the employer to pay the employee to the end of term and the duty to do so will not be subject to a mitigation obligation.

Early Termination Clauses

In order for an early termination provision enforceable, it must be clear and unambiguous.

  1. It should limit the fixed term employee’s entitlement to less than the unexpired portion of the fixed-term and comply with the minimum entitlement stipulated in the Employment Standards Act, 2000.
  2. Employers could also insert a clause in the contract, which expressly states that the fixed-term employee will have a duty to mitigate in the event of early termination.

If you have any issues with a fix-term employment contract, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

Changes in the Employment Law Due to Covid-19: What You Need to Know

by Stacey R. Ball| | Employment Law

Employees are facing new challenges in their workplace due to the Covid-19 pandemic. In this blog, we would like to answer some common questions that employees often raise in connection to their employment.

Q: Can my employer lay me off temporarily due to the Covid-19?

You could be temporarily laid off by your employer only if the employment contract has specifically addressed this possibility and you have agreed to this term. Absent such a term, you may have a claim for constructive dismissal on the basis that you are laid off without an agreement to allow your employer to specifically do so.

Q: If I agree to have a temporary layoff during the Covid-19, does that mean my employer can lay me off again in the future?

If you agree to a temporary layoff without a contract term allowing the employer to specifically do so, you should make it clear in writing to your employer that you are doing so only in response to this specific situation. You must confirm that you are not agreeing to have a layoff as a term of your employment contract.

In this way, once your employer puts you on a temporary layoff again in future after recalling you back to work from this Covid-19 related layoff, you can refuse to accept this. You can consider the layoff as a constructive dismissal and claim a severance package from your employer.

Q: What can I do if my employer wants to reduce my working hours and cut my compensation?

If your employer cuts your pay and reduce your working hours without your specific consent, you may have a claim for constructive dismissal. You have the option of treating your employment as having been terminated and thus start your claim for severance package.

However, if you plan to accept the change, you should make it clear in writing that you are doing so only in response to this specific situation. You are not agreeing to accept these reduced hours or pay as a term of your contract. Only in this way can you claim constructive dismissal if your employer intends to reduce your working hours or pay again in future.

Q: If I am terminated by my employer during the Covid-19 pandemic, can I get any severance pay?

If you are terminated without cause, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy.

During the Covid-19 pandemic, it will be much more difficult for terminated employees to look for alternative employment. This militates in favour of a longer reasonable notice period and thus better severance package.

There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.

Employment issues in connection to the Covid-19 situation can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are experiencing any employment law issues due to the Covid-19, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

The Difference Between Layoff and Termination

by Stacey R. Ball| | Cause For Dismissal

Termination vs. Layoff

Terminations and layoffs are not the same concept in law. While many people may use these terms interchangeably, there is a difference, and now our wrongful dismissal lawyer Toronto will explain it. A termination ends the relationship between an employee and employer. A layoff is a temporary measure which can become a termination if it continues beyond a period of time acceptable under the Employment Standards Act (ESA).

Since a layoff is temporary, there is no right to collect notice or severance pay, but they do get to return to work. In a termination scenario, there is no return to work but instead the employee received notice and/or severance pay.

What is Layoff in Canada?

Layoff is a tool that employers have to temporarily stop providing work and pay to laid off employees, without terminating them, and thus needing to provide employees with their termination entitlements. However, laid off employees are allowed to collect employment insurance (EI). Due to its temporary nature, the intention of a layoff is to bring the employee back to work after a period of time allowable under the Employment Standards Act.

When an employer lays off an employee, it is not required to compensate the individual (salary, benefits, or any other form of remuneration).

The Employment Standards Act provides the following on what is considered a temporary layoff:

  • A layoff of not more than 13 weeks in any period of 20 consecutive weeks; or
  • A layoff of more than 13 weeks in any period of 20 consecutive weeks, if the layoff is less than 35 weeks in any period of 52 consecutive weeks and
    • The employer continues to make substantial payments to the employee
    • The employer continues to make payments towards an employee’s retirement, pension or employee insurance plan
    • The employee received supplementary unemployment benefits
    • The employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so
    • The Employer recalls the employee within the time approved by the Director of Employment Standards
    • The employee is recalled within a time frame agreed upon by the parties

What are the Reasons for Layoffs?

Employers typically use the layoff mechanism when companies have work shortages but anticipate the downturn being a temporary or short-term problem. The employer may not be able to afford the employee temporarily but won’t want to lose them permanently as they may be a good, well-trained employee. As such, the employer will merely lay off the individual rather than terminate them.

An economic recession, industry-wide downturn, or simply a slow time for a business are examples of reasons an employer may choose to lay off employees. Another clear example of when employers have used the layoff mechanism is during the COVID-19 Pandemic. Many businesses had to close or significantly alter their business during that time temporarily. Employers around Ontario and elsewhere in Canada had no choice but to lay off employees as they could not afford to keep paying them while their revenues were minimized. Once businesses opened again, many employees were recalled.

Constructive Dismissal

Employers are expected to abide by the layoff provisions in the Employment Standards Act, 2000. In normal circumstances, a temporary layoff cannot be no more than thirteen (13) weeks in any period of twenty (20) consecutive weeks. If the employer breaches this provision, the layoff may be deemed constructive dismissal. Thus, the laid off employee is entitled to the termination pay.

However, it is important to note that as of March 21, 2020, employees cannot claim constructive dismissal based on the Employment Standards Act (“ESA”) for temporary cuts to their pay or hours of work because of COVID-19, according to Regulation 228/20 issued by the Ontario government on March 29, 2020. These employees are deemed to be on “emergency leave”. On December 17, 2020, the Ontario Government amended Regulation 228/20 by extending the “COVID-19 Period” to July 3, 2021. In other words, employees who experience a temporary layoff due to COVID-19 will be on a deemed emergency leave until July 3, 2021.

Since the Regulation only deals with constrictive dismissal claims under the Employment Standards Act but not the common law, it may not necessarily bar employees from bringing common law constructive dismissal claims to the court.

If you are experiencing constructive dismissal issues in connection to your temporary layoff, it is advisable to seek legal advice from an experienced employment lawyer.

What is Termination in Canada?

While a layoff is a temporary work stoppage, a termination is when the employment relationship is completely severed. This means the employer does not wish to bring the employee back. Reasons for this could be downsizing, job performance, restructuring or simply the financial realities of the company.

Unlike a layoff, employers must provide employees with notice of termination or compensation in lieu of notice as per the Employment Standards Act. Employers must give advanced notice (or pay in lieu) to allow for the dismissed employee to find new work. A laid-off employee does not get notice because the intention is for the employer to bring the individual back.

An employer must give sufficient notice to an employee who is terminated without cause. If sufficient notice is not provided, this is considered a wrongful dismissal.

Termination Without Cause

In Ontario, an employer is entitled to terminate any employee at any time for any reason that is not discriminatory. However, it must provide notice or pay in lieu of notice of termination. This is what we call termination without cause. Examples of termination without cause due to the Covid-19 includes, inter alia, lack of work, reorganization, redundancy of work force.

If you are terminated without case, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy. There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.

Termination for Cause

In the case of termination for cause, it means that an employer may not have to provide with an employee with common law severance.

It is a high bar to terminate someone with cause. Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct. The reason for the high bar is that in the event of willful misconduct, an employee will not receive any termination or severance pay.

If you are an employee who has been fired for cause, you should absolutely reach out to a lawyer to review the circumstances of your dismissal.  You may have a case for wrongful dismissal.

Group Termination

A group termination is when an employer dismisses 50 or more employees working at a single establishment either on the same day or within a four-week period. When this happens, the employer must notify the Director of Employment Standards in writing of their planned group termination at least sixteen weeks before the employment terminations take place.

The information that must be included:

  1. The economic circumstances surrounding the terminations;
  2. Consultations taking place with the communities in which the group terminations will take place;
  3. Any proposed adjustment measures and the number of employees expected to benefit; and
  4. A statistical profile of the affected employees.

Employers must also provide the individual employees who are being terminated notice or pay in lieu of notice. This is in addition to the group termination of employment notice that must be provided to each individual affected.

A joint planning committee must also be established immediately upon providing a notice of group termination.

An employer may request that the Minister of Labour waive an employer’s requirement to give notice if it can show that:

  1. It would be unduly prejudicial to the interests of affected employees or of the employer;
  2. It would be seriously detrimental to the operation of the industrial establishment;
  3. Similar measures are already in place.

For more information, please visit the Canadian Government website or contact Ball Professional Corporation to set up a consultation.

Can Layoff Become a Termination?

A layoff can become a termination if the employer does not recall the employee within the prescribed time limit. If the employee is not recalled, this is considered a constructive dismissal and the terminated employee is entitled to severance pay. The Employment Standards Act outlines the allowable periods of layoffs: 13 or 35-week periods (subject to conditions).