Many workers will emerge from the lockdown in a better position

By Paul Russell, LegalMatters Staff • Although COVID-19 has disrupted many sectors of the economy it may leave employees in a stronger position when asking for changes in their work structure, says Toronto employment lawyer Stephen Moreau.

“We now have almost three months of evidence that shows how companies can operate with a substantial portion of their workforce at home,” says Moreau, a partner with Cavalluzzo LLP. “If an organization found it was just as efficient, it will be more difficult for that firm to refuse requests from workers who want to continue to stay at home.”

Moreau tells LegalMattersCanada.ca that firms that refuse to accommodate someone who wants to work from home may have to provide some evidence that its bottom line is adversely affected when people aren’t at their desks.

“An employer may have to show profits suffered during the lockdown,” he says. “It won’t be good enough just to have anecdotal information to deny at home requests, or to  say ‘I prefer to have people in the office.’”

He cautions employees need a legitimate reason for wanting to work from home, such as caring for a sick family member.

Firms could become more aggressive

After the COVID crisis passes, Moreau says some firms could become more aggressive about how they manage the workforce, through such measures as layoffs or reduced hours or pay.

He urges employees not to quietly accept pay cuts or shortened notice periods, but to instead seek the advice of an employment lawyer.

“The legal constructs around wrongful dismissal are not nuanced,” Moreau says. “The employer’s obligations to its workers do not change because of financial difficulties or if the unemployment rate is high. In each of those cases, they owe the same amount.”

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In fact, he says the COVID crisis may strengthen employees’ arguments for a longer notice period and could increase damages, since it is unlikely they can mitigate their losses by finding other work.

“I think workers will be less likely to settle early or take less from their former employers,” Moreau says. “Workers may see what is going on around them and see their former employer as the best source of income in the coming months or year.”

During the pandemic, he says many people who thought they had secure jobs found out otherwise.

“Well-paid heads of sales departments who grew a company’s business for a decade or more were let go,” Moreau says. “As some firms aggressively reduce their workforce, that is sure to lead to more litigation.”

It has been widely reported that employers are finding that some people don’t want to return to work, preferring to stay at home and collect the Canadian Emergency Response Benefit or claim they are sick.

Most sick day claims are real

“For decades, employers have maintained that sick leave policies encourage people to falsely claim they need time away from work,” he says. “The truth is that only a very small percentage of employees engage in that type of behaviour.”

During and after this crisis, Moreau says more people may ask for absences from work to deal with their own illness or care for family members.

“COVID-19 has taught us the value of having flexible work arrangements and it has shown us why it’s important not to have people coming to work sick and infecting others,” he says. “The idea that companies need to get tougher with workers, a notion I am seeing being bandied about, flies directly in the face of what this crisis has taught us.”

Moreau notes Prime Minister Justin Trudeau recently urged provinces to mandate that all employees should be given 10 paid sick days each year.

“We are all in this together,” he says. “Although we all have to work to get paid, employers need a workforce that is healthy as a collective. So, we all need to support each other.”

Moreau says the pandemic should spark a reconsideration of the value of flexible work arrangements and sick leave policies.

“I think we can all agree that COVID-19 is going to change things but it is too early to tell in what direction employment law is going to go,” he says.