Second COVID Lockdown: What Employers Should Know

As Ontario deals with the health risks of COVID-19 and moves towards the later stages of re-opening its businesses and services, it is possible that health risks may slow the process down. In some cases, the province may elect to restrict the re-opening of businesses and other services to curb the rising rate of COVID-19 cases.

Many businesses may be affected by the recent rise in COVID-19 cases, the province’s consideration to return to Stage 2, and the recent limitation on social gatherings—groups of up to 10 people indoors, and groups of up to 25 outdoors.

As Ontario manages the COVID-19 pandemic, employers who might be forced to undergo a second lockdown will want to be mindful of the following considerations.

Communication

Amid the uncertainty and panic caused by COVID-19, it is vital for employers to communicate with their employees in a timely manner. Employers will want to ensure they have a system in place which advises employees of timelines and other information concerning the lockdown or an eventual return to work. With the re-opening of businesses, employees will need to remain up-to-date with any recall dates if applicable.

Employees who are left in the dark for too long may feel there is no intention of returning them to work, such that their employment might be terminated. This can lead to stress for both parties and potential litigation.

Make sure announcements are accessible and reach all employees, so that everyone is on the same page.

Policies

As COVID-19 is a relatively new issue, both employees and employers have had to adapt on-the-go as a result. Employers should ensure they have policies in place regarding time off, sick leave, and a return to work post-lockdown. Employees will have questions if a second lockdown occurs, so it is important to have expectations outlined in properly drafted policies and plans.

In addition, if the government responds to a second lockdown by extending CERB or other benefits for both employees and employers alike, employers should be aware of all the options available.

Layoffs

For employers considering temporary layoffs should be updated about the changing laws. In Ontario, the government has extended the period of protected layoff to January 2, 2021, such that employees laid off up to and during that time will be deemed not to have been constructively dismissed.

Despite this protection afforded by the government, employers would be wise to review every potential layoff and seek proper advice, as every employee has different circumstances. For example, the employment agreement may lack a proper layoff clause or may be unenforceable, and the employment relationship may be governed instead by the common law. In those circumstances, an employee may argue constructive dismissal.

Employers should consider revising and updating their employment agreements to provide clarity with respect to employee layoffs.

Dismissals

A second lockdown may force employers to dismiss some employees in an effort to restructure their business and manage losses. However, dismissals must be done properly, otherwise the employee may claim for wrongful dismissal and in some cases, bad-faith conduct. Do not assume that the pandemic will permit you to not pay any outstanding wages or a termination package. Consult with a legal professional to prevent expensive claims.

It is also important to ensure that employees are not dismissed simply because they require accommodation, whether for their own COVID-19 disease or for their need to care for family with COVID-19. These instances could lead to claims against the employer for violations of Ontario’s Human Rights Code or the Canadian Human Rights Act, depending on the industry of the employer and which government is responsible for the regulation.

Every potential dismissal scenario should be reviewed on its own to ensure no laws are violated.

Contact Us

If you are an employer or an employee and want to know more about layoffs or terminations during COVID19, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].