June 2, 2020
(Toronto) – The Ford Conservative’s infectious disease emergency leave rules should increase worker protections, not remove access to severance and termination pay as workers struggle to navigate the pandemic, says the Ontario Federation of Labour.
When infectious disease emergency leave in Ontario was created in response to the COVID-19 pandemic, it was to protect vulnerable workers. The law allowed for workers to stay home to care for relatives, self-isolate after travelling abroad, or supervise children who could no longer go to school. Workers could not be fired for staying home, and could continue to access important benefits like health insurance while on leave.
On May 29th, the government changed rules so that non-unionized employees temporarily laid off due to COVID-19 will be deemed to be on infectious disease emergency leave. This change is being applied retroactive to March 1, 2020 and has no clear end date. The new rules will stay in effect until six weeks after the provincial state of emergency ends.
“With this change, the government has turned a leave benefit meant to protect workers into a tool that employers can use to avoid their financial obligations to their employees under the Employment Standards Act, and that’s just not right,” said Ontario Federation of Labour President Patty Coates. “By forcibly deeming laid off workers onto emergency leave, and indeterminately delaying their right to termination and severance pay, the new rules increase the economic precarity of workers at a time when they are the most vulnerable.”
Termination and Severance Pay in Limbo
Many workers have been “temporarily” laid off due to the COVID-19 pandemic, without any clear timelines for a return to work.
Ordinarily, rules under the Employment Standards Act protect workers from being stuck in employment limbo. In most cases, after 13 weeks, workers on a temporary layoff are considered terminated, entitling them to termination pay and, in some cases, additional severance pay. As well, under the Act, if an employee makes less than 50 per cent of their regular earnings in a week it is considered to be a layoff week.
Under the new rules, workers who have been laid off for a reason related to COVID-19 are now deemed to be on an unpaid emergency leave and can be kept on that leave indefinitely, delaying any obligation on employers to pay termination or severance.
Most workers who are currently laid off due to COVID-19 are receiving financial assistance through the Canadian Emergency Response Benefit (CERB). However, CERB currently only provides benefits for a maximum of 16 weeks. Many workers have been relying on receiving their termination and, if applicable, severance payments from their employers after 13 weeks of layoff to help support their households around the time their CERB benefits would be ending. The new rules leave these workers without access to termination or severance pay. Instead, there is a risk that they will be stuck in emergency leave/lay off limbo for an unknown time with limited or no financial assistance.
Eliminating Constructive Dismissal Claims
“Many workers who have not been laid off or fired are still feeling the financial burden of COVID-19. Many have had their hours of work reduced dramatically. Others have seen their employers reduce their hourly wage,” said Coates.
Traditionally, employers have not been allowed to cut hours or wages significantly without facing consequences. Workers faced with dramatic changes to the terms and conditions of their employment could claim constructive dismissal – that they had been effectively fired by their employers.
Under the Employment Standards Act, a worker who is constructively dismissed can seek compensation in the form of termination and severance pay from their employers by bringing a complaint to the Ministry of Labour.
Under Ontario’s new rules, workers who see their pay or hours cut due to COVID-19 after May 29th can no longer claim to be constructively dismissed to the Ministry. Any complaints that are made on this basis will be automatically dismissed.
The only option open to these workers is to either accept the loss of hours or wages, or else take the costlier route of suing their employers in court.
“These rules effectively allow employers to cut hours and wages with relative impunity, causing serious financial hardship to working people,” added Coates.
Letting Employers off the Hook for Paying Employee Benefits
As stated, the new rules allow employers to keep workers on indefinite layoff by transforming a layoff for COVID-19 relatedreasons into a forced unpaid “emergency leave.”
Normally workers who are on leaves have the benefit of a number of protections. One of them is that employers must continue to pay premiums for various benefit programs if an employee wants to continue to participate in them. Under the government’s new rules, even this protection is taken away from many workers.
For workers who can no longer perform their job duties due to COVID-19, and are therefore deemed to be on a leave, their right to continued benefits does not apply if, as of May 29th, their employer was not paying for these benefits. In most cases, employers would not have been paying these payments, because on that date, employees who were not working were laid off and there is generally no obligation to pay for such benefits during a layoff.
“Under this rule, not only are workers forced onto a leave, as opposed to a layoff that could eventually result in termination and severance pay, they are denied key protections that are normally understood to be an important right of workers who are on leave,” said Coates.
Attacking the Most Vulnerable
What is most notable about these new rules is how they target the very workers who are most in need of protection during the COVID-19 pandemic.
Organized workers, who have the benefit of a collective agreement and support of their unions are exempted from these rules.
Highly paid workers could either absorb some loss in pay, or else hire a lawyer to fight constructive dismissal claims in court.
“It is lower paid and precarious workers who will be most affected by the negative consequences of these changes. Rather than use the Employment Standards Act to protect the most vulnerable workers in Ontario during the COVID-19 pandemic, the Ford government has decided to use it as a tool to make them even more vulnerable to their employers’ economic interests,” said Coates.
For more information, please contact:
Ontario Federation of Labour
email@example.com | 416-894-3456
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