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Legal Notes: Job protection, earnings central pandemic work concerns

John Bleasby
Legal Notes: Job protection, earnings central pandemic work concerns

Calls are increasing daily from individual workers and labour groups to shut construction sites across Canada due to COVID-19 concerns. The knock-on effect of one trade leaving a site could impact the progress of those trades who remain. Some predict that a total shutdown of construction is inevitable.

Contractors therefore need to be aware of programs now available from both the provincial and federal governments designed to protect and support employees during this pandemic should work be halted or severely slowed down on their projects.

In normal circumstances, laying-off construction workers due to seasonal workload fluctuations is a relatively straight forward situation, if handled properly. Alex Del Bel Belluz of Gowling WLP explains. “If you are laying off an employee on a temporary basis due to a shortage of work, you must contractually have the right to do so, or it must be to an industry standard; otherwise the employee will be able to successfully claim constructive dismissal.”

The same applies to the reduction of work-week hours, she says. The absence of specific wording in employment contracts or a general practice of reducing or increasing hours of work, leaves a risk that employees could claim a breach of their employment terms and claim constructive dismissal.

However, these are not normal times. Labour laws and new government initiatives are becoming intertwined across Canada, with many provinces announcing changes and amendments to their labour codes.

For example, Ontario recently introduced job-protected, unpaid leaves of absences in emergency situations such as COVID-19. Employees directly affected by the virus — that is, diagnosed or otherwise forced to self-isolate, or care for a child unable to attend school — are eligible. No doctor’s note is required.

Federally, changes to EI sickness benefits now allow those employees self-isolating due to concerns of potential COVID-19 exposure at the work site to receive benefits without a one-week waiting period. However, any direction to self-isolate or quarantine made by the employer must relate to health and safety —directing the employee not to work due to a downturn in activity is not valid. In all cases, Del Bel Belluz says the job must be protected and company benefits must continue. Employers can also top-up the employment insurance benefits being received by the worker while off work under the new supplementary unemployment benefit program.

There are other options available to protect workers’ earnings during a period of quarantine or self-isolation. These include unused paid sick days or vacation time, although these are best negotiated with employees rather than being forced upon them.

Addressing the issue of reduced work weeks, the federal government is providing work sharing assistance through a three-party agreement involving employers, employees and Service Canada. “Work-Sharing is an adjustment program designed to help employers and employees avoid layoffs when there is a temporary reduction in the normal level of business activity that is beyond the control of the employer,” says Service Canada. “The program provides income support to employees eligible for Employment Insurance benefits who work a temporarily reduced work week while their employer recovers.”

Amid calls for workers to simply refuse to work or walk off the work site entirely, the legal experts at Osler, Hoskin & Harcourt LLP say that employees can, in fact, refuse work if they believe there is a risk to their health and safety. However, there is a process that first requires a response from the employer. Ideally, the issue of concern can be resolved through measures taken by the employer on site; otherwise an investigation by a regulator may result. “The determination of the regulator might be made without meeting with the workplace parties in person or there may be other steps or measures implemented by the regulator, for the protection of its staff, that are unusual,” says Paul McLean of labour law specialists Mathews Dinsdale.

Programs surrounding temporary layoffs, hour reductions and work refusals will be fluid for time to come. Contractors with specific issues should seek legal counsel for professional advice.

 

John Bleasby is a Coldwater, Ont. based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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