The advent of the Covid-19 pandemic has reshaped the traditional working styles and reimagined the roles of offices in the work environment. In addition, the pandemic has also exerted huge impact on the Canadian economy, causing substantial job losses and making others in jeopardy.
In this blog, we would like to answer some of the questions in regard to your employment rights during the Covid-19 to help you better understand your situation in the current employment market.
REFUSAL TO WORK BECAUSE OF COVID-19 CONCERNS
Q: Can my employer fire me if I refuse to go to work because of Covid-19 concerns?
Employers are entitled to expect that their employees will continue to perform their work unless there is a legitimate reason to show why they cannot. Normally, your employer can expect you to come to work if your workplace remains open and your employer is following the government’s guidelines for a safe workplace. It is simply not enough for you to say that you want to stay home because of the Covid-19.
If you do not have Covid-19 while your workplace remains open, your employer could terminate you for not coming to work. Your refusal to work can be perceived as resignation by your employer if the workplace is deemed safe. In these case, you will not be entitled to severance pay.
However, there are situations that you can stay home. You can ask for an unpaid leave of absence from work (“Infectious Disease Emergency Leave”). This will prevent you from being terminated if
- You are sick with Covid-19
- You are caring for a family member who has contracted the disease
- You have been ordered to quarantine or isolate
- You are in isolation, self-isolation or quarantine because of information or directions from a doctor or nurse, a public health official, Telehealth Ontario, a municipal council, the Ontario government, the Canadian government, or a board of health.
Q: I have underlying medical conditions and a compromised immune system. Can my employer let me go if I refuse to go back to work due to Covid-19 concerns?
If you have an underlying medical condition such as diabetes or chronic pulmonary disease, you are at greater risk of contracting Covid-19 if you return to your workplace. Under these circumstances, you have two options:
- You can either take the unpaid Infectious Disease Emergency Leave; Or
- You can ask your employer for accommodation, such as working from home.
If you are planning to take the infectious disease emergency leave, you should notify your employer of this as soon as possible. However, it is not necessary for you to give your employer a doctor’s note. If you employer asks for reasonable proof, you can simply provide them with some details about why you need to leave.
If you have a weakened immune system because of underlying medical conditions, there is a higher risk for you to contract Covid-19 at the workplace. If your employer still forces you to come to work in the office, this amounts to discrimination. According to Ontario Human Rights Code, employers cannot discriminate against employees on a number of enumerated grounds, including disability. To avoid this situation from happening, the employer has a duty to offer different working conditions to accommodate you. This could include working from home or working at different hours.
WORKING FROM HOME
Q: If my employer does not allow me to work from home, what should I do?
If your employer has followed all the necessary government’s guidelines and the workplace is deemed as safe, you are obliged to attend the workplace. Any refusal to work on your part could be considered as resignation by your employer.
However, if you have certain family obligations such as caring for your children who stay at home, your employer has the obligation to accommodate you to the extent of undue hardship. If your employer does not allow you to work from home, it would amount to the breach of Ontario Human Rights Code (“Code”) on the basis of family status.
If you have underlying medical conditions or a weakened immune system, your employer has the same obligation to accommodate you. It should allow you to work from home. Otherwise, it could be perceived as discrimination on the basis of disability under the Code.
Q: Can my employer be allowed to only choose certain staff to work from home?
Yes, employers are allowed to only choose certain staff to work from home, as long as they are not discriminatory in choosing who can or cannot work remotely.
SELF ISOLATION AND ACCOMODATION
Q: Does my employer have to pay me if I have contracted Covid-19 or am in quarantine?
No, your employer does not have a duty to pay you if you have contracted Covid-19 or are in quarantine. However, if you are still able to continue to perform your work duties by working remotely, you are then entitled to your usual pay and benefits.
Q: Can my employer ask me if I have tested positive for Covid-19 and share that information with other employees?
An employer generally does not have the right to disclose any employee’s confidential medical information to others. It is a breach of Ontario Human Rights Code (“Code”) on the basis of disability once the employer does that.
However, it is allowed under the Code if your employer asks you this question to determine whether you are fit for work and fulfill its obligation to create a safe work environment. However, if your employer discloses any identifying information to other employees without any urgent health and safety justification to do so, it will amount to a breach of the prohibited ground of disability under the Code. Therefore, it is advisable for employers to disclose that an unnamed employee has tested positive for Covid-19 once they find that someone in its workforce has contracted Covid-19.
If you are experiencing any employment law issues in connection 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.