Can an employee be fired for staying home during COVID-19?
New Section of ESA: Employees entitled to leaves of absence due to COVID-19
Queen’s Park passed legislation amending the Employment Standards Act ("ESA") and added Section 50.1. Under that Section, an employee is “entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position” due to:
A State of Emergency order applies to that employee – that is, if the business was ordered closed due to the State of Emergency (s. 50.1(1.1)(a)(i))
Because the employee needs to provide care to a list of individuals, including extended family members (Sections 50.1(1.1)(a)(iii) and 50.1(8));
Because the employee is under “medical investigation, supervision, or treatment” relating to COVID-19 (s. 50.1(1.1)(b)(i)
The employee is in quarantine or isolation at the direction of a health official (s. 50.1(1.1)(b)(iii)
The employee is under a direction by his/her employer to stay home because that employee exposes a risk to others in the workplace relating to COVID-19 (s. 50.1(1.1)(b)(iv)
The employee has to stay home to care for children during school and daycare closures (s. 50.1(1.1)(b)(v)
The employee is subject to travel restrictions and cannot reasonably be expected to travel back to Ontario (s. 50.1(1.1)(b)(vi)
And other reasons to be prescribed by regulation (s. 50.1(1.1)(b)(vii)). At this time, no regulations have been released that expands this list.
Under Section 2 of O. Reg. 66/20, an employee’s entitlement to leave for the above “is deemed to have started on January 25, 2020.”
If the employee falls into any of the above categories, he/she is entitled to a “leave of absence without pay,” which essentially means the employer is not required to pay the employee’s salary, but is prohibited from terminating the employee. However, employees with an unpaid leave of absence for any of the above reasons would likely qualify for the newly announced Canada Emergency Response Benefit (CERB). Click here to learn more about CERB.
Given the unprecedented nature of the COVID-19 pandemic, there is obviously no judicial interpretation of Section 50.1 of the ESA. It therefore remains to be seen whether the Courts would allow an employer to terminate an employee and claim a defence of frustration in the face of this new section of the ESA. To learn more about the doctrine of frustration, check out this article.
Consequently, the safest action for employers may be to resist termination or layoff if the employee is off work for any of the above-noted reasons. But the employer may otherwise be able to terminate an employee due to frustration of the employment contract. Check out this article for more information.
Give us a call to get advice on how the ESA and the doctrine of frustration applies to your employment contract.
We are closely monitoring this ever-shifting legal landscape. Stay tuned as we learn more.
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DISCLAIMER: This is not legal advice. This post is meant to provide general information on the ESA. The law is necessarily contextual, and depends entirely on your individual circumstances. An analysis of all contextual factors relating to your employment contract, and the effect of COVID-19 on your business is absolutely necessary before a conclusion can be reached.