Know your workplace rights during coronavirus shutdowns

The coronavirus pandemic has left employers and employees “in unchartered territory” when it comes to their rights, says Toronto-area employment lawyer and mediator Stuart Rudner.

Rudner, founder of Rudner Law, tells several media outlets that there is a great deal of confusion that could lead some to incur risks that may cost them later.

“There are so many misconceptions out there,” Rudner tells CityNews, adding that the biggest and scariest is that “contrary to popular belief, businesses do not have the right to lay people off temporarily and that comes as a shock to a lot of people.”

Potential constructive dismissal claims

He tells the Toronto Star that some small Ontario businesses may unwittingly be exposing themselves to constructive dismissal claims when laying off workers due to COVID-19 closures or slowdowns, which could lead to an influx of wrongful dismissal suits in the near future.

“People don’t realize what they’re doing at this point,” he tells the newspaper.

Many provinces have laws setting out how temporary layoffs can be implemented, but the right to impose temporary layoffs comes contract the Star reports. Otherwise, the employee has to agree.

In Ontario, temporary layoffs can last 13 weeks, or in some instances up to 35 weeks, if the employer pays the workers’ benefits, Rudner tells the newspaper.

If the worker is not recalled, it is treated as a termination and severance pay is owed, according to the report.

Rudner tells the Star that unionized companies usually have provisions written into their employment contracts to allow for temporary layoffs, which can be common in industries such as construction. 

However, he says, many smaller outfits are unlikely to have such provisions in their employment contracts and even a temporary layoff would be legally interpreted as a termination and require severance pay.

‘Have that frank conversation’

“If you are an employee and you are told that you are being sent home, I would have that frank conversation. Your understanding is the company doesn’t have the right to do that. You’re willing to talk to them and see if there’s a way to minimize the impact on your income but you are not just going to accept the fact that you are being temporarily laid off,” Rudner tells CityNews.

He tells the Globe and Mail that employers and employees need to be familiar with their rights and obligations.

“Some companies are taking a chance and some just don’t know that they are taking a risk,” he says.

Rudner tells the Globe that he suggests businesses ask their employees to agree to a temporary layoff and if workers do consent, they should emphasize that they are not agreeing to such layoffs in the future.

He says the pandemic has caused obvious hardship for both employees and employers.

“Businesses are in an impossible situation,” Rudner tells LegalMattersCanada.ca. “Many have been ordered to cease operations altogether, and most others have seen a dramatic decrease in revenue. The status quo cannot continue, as their businesses will not continue to be viable unless they can dramatically reduce their costs.”

He notes that “some have suggested that it is not right to assess constructive dismissal through a pre-COVID-19 lens.”

‘Compelling position’

“That is a compelling position, and I have tremendous sympathy for the businesses that, realistically, have no choice,” Rudner says. “The law was certainly not created to handle situations like this, but at this point, the law of constructive dismissal has not changed.

“It is quite possible that a court will, when asked to interpret the current set of circumstances, decide that the law of constructive dismissal cannot be applied in its current state to the entirely new situation we face. Or it is possible that a government body will intervene. However, neither of those things have happened yet,” he adds.

Rudner says it remains to be seen how a court will treat “this unprecedented situation.”

“At this point, many businesses have no choice but to lay their employees off. My concern is that most do so without a proper understanding of the law,” he says. “My goal is to help them make informed decisions, rather than assuming that they have the right to impose layoffs and unknowingly exposing themselves to liability.

“They may still decide to lay people off, but as in any circumstance, the decision should be made based on an understanding of the legal situation so there are no surprises in the short or long term.”

Meanwhile, for those businesses that stay open, Rudner tells CityNews it is important workers know their rights when it comes to keeping safe

Right to refuse unsafe work

“There’s always been a right to refuse unsafe work in our occupational health and safety legislation,” he says. “But we’re obviously in unchartered territory, and it’s hard to say how we apply it now.”

Rudner tells CityNews that while a pandemic is not reason enough to stay away from the job, an employee can refuse work if there is a legitimate threat to their safety.

If, for example, someone is being forced to work next to a person showing symptoms of COVID-19, then it would be reasonable to believe their health is being compromised and that employee would be justified in refusing work, he tells the news agency.

However, claiming you can’t go to work because you might be exposed to the virus while taking public transit is not a reasonable excuse for staying home, Rudner tells CityNews.

“The fact that you might get sick on your way to work is not going to be a reason not to go to work, the same way it’s not an excuse to be late if your bus was late,” he says, adding the resolution would be finding another way to get to work.

Protect against liability

Rudner tells CityNews it’s up to businesses to provide safe work environments and suggested making adjustments that allow for the recommended two-metre separation between people in order to protect themselves from liability.

“We’ve suggested staggering shifts so certain people work certain hours, having as few people in the workplace at the same time as possible,” he says, adding he also recommends allowing workers to wear protective equipment if possible, and that spaces be frequently cleaned and sanitized.

In the end, workers need to make any issues known to their employers, while documenting any requests for accommodation or safety measures before refusing work and they can also contact the Ministry of Labour or an employment lawyer with their concerns, Rudner tells CityNews.