COVID-19 Employment Issues
COVID-19 employment law webinar
COVID-19 pandemic has raised a host of questions concerning veterinary practices' ability to take certain actions to stay afloat during the crisis. To address these questions and other issues, OVMA hosted a webinar on COVID-19 employment law featuring a presentation by Jordan Morelli and Tamara Ramsey from Dale & Lessmann LLC, which provides legal counsel to OVMA. Watch the webinar recording or view the presentation slides.
Q. Can a practice lay off employees?
A. Yes, if an employment agreement exists and if that agreement includes a provision allowing employees to be laid off. If no employment agreement exists or if the agreement doesn't specifically allow layoffs, the practice can still lay employees off, but not without some legal risk. OVMA’s legal counsel has provided members with advice on the potential legal ramifications of laying off staff, as well advice on how to approach staff layoffs. That advice can be found here. Or check out the OVMA webinar on COVID-19 employment law, which explores the legal ins and outs of staff layoffs.
Note: In light of the federal government’s 75 per cent wage subsidy announced on March 30, most Ontario veterinary practices should be able to maintain a positive cash flow without resorting to layoffs. Before contemplating layoffs, practice owners are encouraged to review OVMA’s Guide to Keeping Your Practice Afloat During COVID-19.
Q. How long can an employee be laid off?
A. Under the Employment Standards Act (ESA), employees can be laid off for:
- A maximum of 13 weeks in any period of 20 consecutive weeks, or
- A maximum of 35 weeks in any period of 52 consecutive weeks if, for example:
- The employee continues to receive substantial payments from the employer;
- The employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan;
- The employee receives supplementary unemployment benefits.
Q. Can locums be laid off?
A. Generally speaking, a clinic will engage a locum as an independent contractor, rather than as an employee. The ESA doesn't apply to independent contractors, so it's the terms of the contract between the practice and the locum that govern the relationship, along with the common law principals developed by the courts (common law refers to law that is derived from custom and judicial precedent rather than statutes). Whether or not a practice can reduce a locum’s hours or cease to use the locum during the pandemic will depend on the particulars of the agreement between the locum and the practice.
Practices contemplating such a move should consult their agreement with the locum to determine whether a reduction in hours or early termination of the agreement is permitted. If an agreement is silent or verbal, consult with a lawyer to determine what is commercially reasonable in the circumstances.
When reviewing agreements, it is important to note requirements with respect to scheduling, minimum hours or payment, termination and notice provisions. It's reasonable to expect that a locum would be entitled to commercially reasonable notice prior to the clinic making any unilateral changes to the agreement. In the event that the clinic wishes to make unilateral changes to the contract, it can provide the locum with reasonable notice of the new terms that will take effect at the end of the notice period. (Note: It is OVMA’s understanding based on the information available at this time that self-employed veterinarians, including independent contractors, who lose their income during the pandemic are eligible for the $2,000/month Canadian Emergency Response Benefit. For details, click here).
Q. What happens at the end of the temporary layoff?
A. At the end of the layoff period, the practice must either recall the employee to return to work or terminate their employment. If a staff member’s employment is terminated, the employee must be paid appropriate severance and termination pay, as set out in the ESA and pursuant to the common law, if applicable. It's important to be mindful that Section 57 of the ESA only provides the minimum notice period to which the employee is entitled. Any planned termination should be reviewed with a lawyer to determine the correct notice period in the circumstances, as common law provides for a much longer notice period than that set out in the ESA.
Q. What is the difference between a layoff and leave of absence?
A. Simply put, a lay off occurs when an employer stops an employee’s job for a specific period of time, without ending their employment. In most instances, a layoff is completed for financial reasons or a downturn in business because there is a shortage of work.
A leave of absence is separate and distinct concept and should not be confused with a layoff. The ESA provides for several types of leaves of absence, such as pregnancy or parental leave. A leave of absence will typically be initiated by the employee. There's no need to lay off an employee who is already on an unpaid leave of absence, be it under the new job-protected leaves created by the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, (see an example below) or one of the existing list of eligible leaves permitted by the ESA, including pregnancy and parental leave.
Q. What if an employee wants to take time off to care for children or family members who are ill?
A. The job-protected leave created by the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, permits an employee to take an unpaid leave of absence to provide care for their children or for family members who are ill. The proposed new Federal Canadian Emergency Response Benefit (CERB) is expected to provide a taxable benefit of $2,000 a month for up to four months to a variety of individuals, including workers who are taking care of someone who is sick with COVID-19, and working parents who must stay home to care for children who are sick or need additional care because of school and daycare closures. Alternatively, employees on a leave may qualify for EI. It's up to the employee to submit their application to either EI or the CERB (once available).
Q. Can a practice unilaterally reduce an employee’s hours?
A. Employers should exercise caution when contemplating unilateral reductions in an employee’s hours. Any material reduction or other negative change to the terms of employment can be considered to be constructive dismissal and employers are advised to approach this cautiously. A preferable approach would be to discuss the subject with the employee and have him or her agree to a voluntary reduction in hours. Considering the circumstances, employees may be agreeable to such an arrangement if the most likely alternative is being laid off or terminated.
If the employee is agreeable and an employment agreement exists, the best practice is to amend the relevant sections of the employment agreement. In the absence of a written contract, best practice suggests that the employee sign a consent form whereby he or she agrees to the new terms of employment. In either case, it's very important that the employee be provided with fresh consideration (a payment or other benefit such as an additional vacation day) and the opportunity to obtain independent legal advice, and not be forced to sign under duress.
Q. Can I demand that employees and/or locums not work elsewhere during the pandemic?
A. No, unless the employee is continuing to work on a full-time basis and you have a written employment agreement requiring them to devote their full time and attention to the clinic. Even if such an agreement exists, if the employee’s hours are reduced, the employee may be entitled to mitigate his/her losses by working elsewhere, so long as the employee is not engaging in unfair competition. It's generally expected that all employees will be taking appropriate precautions at work and at home to limit the likelihood that they become infected and expose other staff to the virus.
Q. What do I do if an employee comes to work with COVID-19 symptoms?
A. The staff member who is ill must immediately report that they are unwell to their supervisor then go home in a personal vehicle, not public transit. The practice does not need to close, but remaining staff should sanitize all workspaces and, where appropriate, seek guidance from the public health authorities. Once home, the ill staff member should contact their primary care physician or telehealth Ontario to determine whether COVID-19 testing is required. If the individual doesn't need to be tested, they are to remain at home until they are well. Should the individual be tested for COVID-19 and test positive, Public Health will notify the employer and determine next steps. A positive test doesn't automatically mean everyone in the clinic needs to self-isolate or is in jeopardy - it will depend on the health practices and social distancing being done at the clinic. Public Health will evaluate and provide directives.