As the province wavers between phases and a few employees enter month 10 since being laid off, employees may be wondering what their rights are while they are off work for the reasons associated with COVID-19. We are often asked if employees are entitled to paid time off, and/or if employees are likely to get any benefits and vacation time while they are off work.
With respect to time off, unless you are performing work remotely, your employer doesn’t have an obligation to pay you while you’re away from the workplace. You should check with your employee handbook or any policies your employer has put in place with respect to paid time off, as they may advise in a different manner. However, if no such policies are present, the sole manner to be paid by your employer while off work is to use unused vacation or personal/sick days.
Benefits & Vacation Time During COVID-19
As part of your benefits, you may have access to Long-Term Disability or Short-Term Disability benefits that are designed to give monetary support while an employee is off work because of disability. However, to meet the criteria of these benefits employees must meet the definition of disability of the insurer.
As for benefit continuance, technically speaking, they don’t need to be continued if the reason why you’re off work is associated with COVID-19. Before, COVID-19, if an employee was momentarily laid off, the layoff could just task up to thirteen weeks before it became a (permanent) termination. An employer could extend the provisional layoff time to up to 35 weeks by continuing the employee’s pension or benefits. However, pension/benefits are required to have been continued from the very first day of the layoff.
However, all this changed in May 2020 when the Ontario government introduced a new regulation known as the Infectious Disease Emergency Leave regulation, which specifies that employees whose working hours have been reduced or eliminated for reasons associated with COVID-19 are deemed to be on Infectious Disease Emergency Leave (IDEL) – not momentarily laid off as they would have been considered before.
As a result of this amendment, the provisional layoff clock has not started to tick, so there’s no compulsion for employers to continue to the benefits of their employees with the aim of expanding the provisional layoff time to 35 weeks.
Employees with reduced or eliminated hours will be deemed to be on IDEL from March 1, 2020 to January 2, 2021. Starting from January 3, 2021, employees will no longer be deemed to be IDEL.
Does the employer have the pay me while I am staying home as a result of a work refusal?
If you are continuing to carry out your work during the investigation distantly, your employer must pay your regular wages for that work. If you aren’t working, your employer doesn’t have a compulsion to pay you while you’re away from the workplace, unless the employer has an existing rule that provides otherwise.
To better understand your entitlements and explore the practicability of a claim during these unprecedented times, we encourage employees to look for legal recommendations. We at Scher Law are happy to provide insight and advice into your particular state of affairs. If you are in search of employment lawyers and would like more information regarding what Scher Law can do for you, do not hesitate to give us a call at (416) 515-9686. In addition to employment and labour law issues, you can even count on approaching us for issues related to disability laws, personal injury, human rights law, health law, civil litigation, administrative law, education law, personal discipline, constitutional law, and complex family and estate litigation.
NOTE: It is important to note that the information mentioned above is related to the right under the Employment Standards Act. You may have constitutional rights from the common law (judge-made law) or the ones that arise out of your contract (or employee policies).