The following provides general guidance to employers in dealing with the potential impacts of COVID-19 on the workplace. The information contained below is subject to change as the COVID-19 pandemic progresses. All should appreciate that this is a fluid situation and we will continue to update our clients as matters change. For specific issues, please speak with your Mathews Dinsdale lawyer.
We have issued a number of In A Flash updates for specific issues arising from the COVID-19 pandemic. These can be accessed on the Firm’s Insights page using the “COVID-19″ filter.
Where can employers get regular updates on COVID-19?
The Government of Canada’s Public Health Agency
Infection Prevention and Control Canada (ipac)
Mathews Dinsdale COVID-19 Employer Support
Federal and Provincial Financial Assistance
We have summarized the various federal and provincial government programs in response to the COVID-19 pandemic here.
Full details of the Federal Government response plan can be found here.
Canada Emergency Response Benefit (“CERB”)
The Canada Emergency Response Benefit (“CERB”) is an income support payment payable to eligible workers for up to four (4) months within the period falling between March 15, 2020 and October 3, 2020 for workers who have ceased work and are not receiving income as a result of COVID-19. The Federal Government has announced that the amount of the benefit will be $2000 per month.
To qualify for the CERB, a worker must reside in Canada, be at least 15 years of age, and must have a total income of at least $5000 (or such other amount as prescribed) for 2019 or in the 12 months prior to their application from employment, self-employment, EI benefits, or provincial pregnancy and parental benefits.
The CERB remains available to the following workers, including self-employed individuals:
- who have lost their job or income due to COVID-19;
- who are unable to work as a result of sickness or quarantine; and
- who need to provide care of an individual who is sick or in quarantine, or who need to provide care or supervision to a child due to school or daycare closures.
On April 15, 2020 the Federal Government announced expanded eligibility for the CERB. Although full eligibility details have not yet been formally released, the Federal Government has announced CERB will also be available to:
- seasonal workers whom are without a job due to Covid-19;
- individuals whom have used all available EI payments; and
- workers whom earn up to $1,000 a month.
A worker is not eligible for the CERB if they quit their employment voluntarily.
The CERB will not be payable to those who are in receipt of employment or self-employment income in excess of $1,000 a month (subject to exceptions that may be made by regulation), EI benefits or provincial pregnancy and parental benefits for the days on which they have ceased working.
Individuals can now apply for the Canada Emergency Response Benefit. Applicants can choose between receiving direct deposits or mailed cheques, though applicants who select direct deposits will be paid quicker. Furthermore, applicants are able to apply for the CERB retroactively to March 15, 2020. Benefits start within ten (10) days of an application being submitted.
The Federal Government also states that individuals who applied for Employment Insurance do not need to re-apply for the Canada Emergency Response Benefit. An individual who became eligible for EI before March 15th will have their claim dealt with under EI rules. However, an individual who became eligible for EI on March 15th and onward will automatically have their claim processed under the Canada Emergency Response Benefit. The Canada Revenue Agency (CRA) has also set up specific days for individuals to apply based upon their birth month:
- Individuals born in January, February or March should apply for CERB on Mondays (with the best day to apply being April 6);
- Individuals born in April, May or June should apply for CERB on Tuesdays (with the best day to apply being April 7);
- Individuals born in July, August or September should apply for CERB on Wednesdays (with the best day to apply being April 8);
- Individuals born in October, November or December should apply for CERB on Thursdays (with the best day to apply being April 9); and
- Individuals born in any month should apply on Fridays, Saturdays and Sundays.
The Federal Government will continue to review the CERB benefit, including making legislative changes to “fill the gaps”.
Canada Emergency Wage Subsidy (“CEWS”)
On April 11, 2020 the Federal Government passed legislation, finally providing more definitive clarity on the CEWS.
Eligible employers will include employers of all sizes and across all sectors of the economy, excluding public sector entities.
Eligibility for employees is limited to individuals employed in Canada, and employees that have not been without remuneration for more than 14 consecutive days in the eligibility period. The eligibility periods include: March 15 to April 11, April 12 to May 9, and May 10 to June 6. This rule replaces the previously announced restriction that an employer would not be eligible to claim the CEWS for remuneration paid to an employee in a week that falls within a 4-week period for which the employee is eligible for the Canadian Emergency Response Benefit.
Eligible employers who suffer a drop in gross revenues of at least 15% in March, and 30% in April or May, when compared to the same month in 2019, will be able to access the subsidy. Employers would be required to attest to the decline in revenue in applying for the subsidy.
The legislation also included an alternative method for calculating revenue for eligible entities that faced difficulties in 2019. This alternative approach allows employer to compare their revenue using an average of the revenue earned in January and February 2020.
When first applying for the CEWS, an employer must select which calculation method they will use, and will be required to use the same method for the duration of the program.
An employer’s entitlement will be based entirely on the salary or wages actually paid to employees. Eligible employers will be able to access the CEWS by applying through the Canada Revenue Agency’s My Business Account online portal, and are required to keep records demonstrating their reduction in arm’s length revenues and remuneration paid to employees. More details in how to apply will follow.
How much does it cover?
The subsidy will cover up to 75% of wages on the first $58,700 that an employee earns, up to a maximum of $847 a week. The program will be in place for a 12-week period, from March 15 to June 6, 2020. There is no overall limit on the subsidy amount that an eligible employer may claim.
The subsidy amount for employees that do not deal at arm’s length with the employer will be limited to the eligible remuneration paid in any pay period between March 15 and June 6, 2020, up to a maximum benefit of the lesser of $847 per week and 75 per cent of the employee’s pre-crisis weekly remuneration. The subsidy would only be available in respect of non-arm’s length employees employed prior to March 15, 2020.
Those organizations that do not qualify for the CEWS may continue to qualify for the previously announced temporary wage subsidy of 10% of remuneration from March 18 to June 19, 2020, up to a maximum subsidy of $1375 per employee and $25,000 per employer. See below for more information.
If an employer is eligible for both the CEWS and the 10% wage subsidy for a period, any benefit from the 10% temporary wage subsidy for remuneration paid in a specific period should be expected to generally reduce the amount available under the CEWS in the same period. Similarly, if an employer is utilizing a Work-Sharing program, the EI benefits received through that program will reduce the benefit that the employer is entitled to receive under CEWS.
The Federal Government indicated that it hoped these developments would help employers re-hire workers who had previously been laid off, and encouraged employers utilizing the program pay employees the remaining 25% of wages not covered by the subsidy and ensuring all funds through the program go directly to employees. It appears that businesses taking advantage of the subsidy do not need to pay the remaining 25% if unable to do so, as a condition of eligibility, but are expected to make best efforts to bring employees’ wages to their pre-crisis levels.
The pre-crisis remuneration for an employee would be based on the average weekly remuneration paid between January 1 and March 15 exclusively, excluding any seven-day periods where the employee did not receive remuneration. Eligible employers will also be able to apply for the subsidy for new employees.
Employers eligible for the CEWS be entitled to a 100% refund for certain employer-paid contributions to the Employment Insurance, the Canada Pension Plan, the Quebec Pension Plan, and the Quebec Parental Insurance Place. This refund would be applicable to the entire amount of employer-paid contributions in respect of remuneration paid to employees while the employer is eligible for the CEWS.
Employer would be required to repay amounts that have been paid out under CEWS if eligibility requirements are not met. Penalties may apply in cases of fraudulent claims, including fines or imprisonment. Additionally, anti-abuse rules would be put into place. Employers that engage in artificial transactions to reduce revenue for the purpose of claiming CEWS would be subject to a penalty equal to 25% of the value of the subsidy claimed, in addition to repaying the full subsidy. We recommend employers consult with their accountants with respect to determining their eligibility to apply for the CEWS given the potential significant penalties contained in the legislation.
10% Temporary Wage Subsidy
The 10% Temporary Wage Subsidy is still available for three-month to eligible employers to reduce the amount of payroll deductions required to be remitted to the Canada Revenue Agency.
The subsidy, which is considered a taxable income, is equal to 10% of the remuneration you pay from March 18, 2020 to June 19, 2020, up to $1,375 for each eligible employee to a maximum of $25,000 total per employer. The subsidy calculation is based on the total number of eligible employee employed at any time during the three-month period. The CRA will not calculate the allowable subsidy, it is the responsibility of the employer or whoever is in control of payroll remittances to determine the amount. If eligible employers do not reduce their payroll remittances during the year, the subsidy can still be calculated for the same period, and at the end of the year the CRA will pay the amount to the employer or transfer it to the next year’s remittance.
Employers are eligible if they:
- are a(n)
- individual (excluding trusts),
- partnership (see note below),
- non-profit organization,
- registered charity, or
- Canadian-controlled private corporation (including a cooperative corporation) eligible for the small business deduction;
- have an existing business number and payroll program account with the CRA on March 18, 2020; and
- pay salary, wages, bonuses, or other remuneration to an eligible employee.
An eligible employee is an individual who is employed in Canada. Partnerships are only eligible for the subsidy if their members consist exclusively of individuals (excluding trusts), registered charities, or Canadian-controlled private corporations (CCPCs) eligible for the small business deduction.
The CRA is updating reporting requirements, more information will be released in the near future, however employers will need the following information to support their subsidy calculation:
- the total remuneration paid from March 18, 2020 to June 19, 2020;
- the federal, provincial, or territorial income tax that was deducted from that remuneration; and
- the number of eligible employees employed in that period.
No application is needed for the subsidy. The subsidy is calculated when remittances are made to the CRA. Once employers have calculated their allowable subsidy, they can reduce their current payroll remittance of federal, provincial, or territorial income tax that they send to the CRA by the amount of the subsidy. Employers can start reducing payroll remittances of federal, provincial or territorial tax in the first remittance period that includes remuneration paid from March 18, 2020 to June 19, 2020. However, payroll remittances are not subject to deferral as part of the tax measures to help support those affected by COVID-19, employers must continue remitting payroll deductions by their remittance due date.
EI Sickness Benefits
Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or quarantine, to allow them time to restore their health and return to work. Canadians quarantined can apply for EI sickness benefits.
Presently, the one-week waiting period for EI sickness benefits has been waived for claimants who have been quarantined, as has the requirement for a medical certificate.
Regular EI Benefits
Presently, there have not been changes made to regular EI benefits. Employees who are laid off may apply for regular EI benefits if they qualify under existing guidelines. If Employees are not eligible for EI, they may be eligible for Emergency Support Benefits.
Service Canada Guidance Regarding Record of Employments (“ROE”)
Service Canada has provided guidance to employers with respect to which code employer’s should submit upon the filing of ROEs. It is as follows:
“If your employees are directly affected by the coronavirus (COVID-19) and they are no longer working, you must issue a Record of Employment (ROE).
When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments.
When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments. When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.”
Responding to Potential Infection and Infection in the Workplace
Can an employer take an employee’s temperature to determine whether they might be infected? What about other medical testing?
As the prevalence of COVID-19 continues to escalate, a number of employers Canadian employers have instituted temperature checks in the workplace.
Depending on the nature of the employer’s business (food supply and preparation, healthcare, working in close quarters, etc.) it may be reasonable for employers to take more aggressive health testing measures in the workplace, including temperature checks. Such a measure is consistent with workplace occupational health & safety obligations to take every precaution reasonable in the circumstances for protection of workers.
Employers must recognize that (a) temperature screening may not capture asymptomatic carriers of the COVID-19 virus and (b) depending on how the testing is being conducted, surface testing may not capture people with a fever.
Employers should be aware that there may be human rights, occupational health and safety and privacy considerations should they wish to take the temperature of employees or members of the public entering a premises.
We will continue to review recommendations from the Public Health Agency of Canada and provincial health authorities.
An employee has tested positive for COVID-19 – what does the employer do?
The employee should not be permitted to return to the workplace until they are free of the COVID-19 virus.
The current advice from health authorities is that all employees who worked closely with the infected employee should also be removed from the workplace for at least a 14-day period to ensure the infection does not spread in the workplace.
What constitutes “closely” will depend on the workplace and the nature of interactions between employees. Employers should err on the side of caution.
Employers should also take reasonable measures, to the extent possible, to protect the identity of any employee who contracts COVID-19.
One of our employees has an unconfirmed case of COVID-19. What to do?
As with a confirmed case, the employee should be removed from the workplace.
The Public Health Agency of Canada encourages any person who has even mild symptoms to stay home and call the public health authority in the province or territory they are in to inform them. They will provide advice on what the employee should do.
Other employees who may have been exposed should be informed and removed from the workplace for at least a 14 day period or until the diagnosis of COVID-19 is ruled out by health authorities.
One of our employees told us that they came into contact with someone who has COVID-19. What should we do?
Once the contact is confirmed, the employee should be removed from the workplace for at least 14 days or as otherwise directed by public health authorities. Co-workers who may have come into close contact with the employee should also be removed from the workplace for at least a 14 day period.
If one of our employee’s has COVID-19, does the employer have to report it to the provincial or federal government?
There is no obligation to report a confirmed case of COVID-19 to federal or provincial health authorities. The medical professional who received the diagnosis has the obligation to report the positive test result to provincial health authorities.
However, if an employee in the workplace is diagnosed, employers may want to voluntarily contact public health authorities to receive advice and assist in identifying contacts the infected employee had in the workplace.
Additionally, if the employee becomes ill or dies from COVID-19, and it is determined that infection occurred at the workplace or in the course of employment, there may be an obligation, under health and safety and workers’ compensation legislation, to notify the regulator.
The COVID-19 pandemic has significantly impacted travel to and from Canada. In early March, the Canadian Government encouraged Canadians not to travel abroad. In addition, the Canadian government responded to the pandemic by trying to repatriate Canadians and permanent residents, for their safety.
On March 18, 2020, the Canadian government closed the Canadian border to all, with some exceptions. This announcement morphed into two separate and distinct government orders.
On March 20, 2020, the Canadian government announced that they would close the border to non-essential travel between Canada and the United States. Canadian and American governments have been reviewing this agreement and it has been extended monthly. Currently, the shared border remains closed until September 21, 2020. It is likely that this order will be further extended.
On March 22, 2020, the Canadian government announced that the Canadian border would be closed for non-essential travel to anyone entering from any country other than the United States. This order has also been reviewed and renewed. Currently, this order is in place until September 30, 2020. It is highly probable that it will also be extended past that date.
Foreign workers wishing to enter Canada from a country other than the United States must now apply online for their work permits, prior to entry to Canada. Previously, this was not required for any visa-exempt applicants. Once approved, the foreign worker’s travel to Canada is deemed essential.
Because of this pre-approval requirement, processing times have greatly increased and are negatively affecting Canadian employers. While there are some options for urgent processing, the ability to take advantage of this depends in part on the country where the application is being submitted. For countries that effectively remain closed due to the pandemic, the Visa Application Centres also remain closed, meaning that applicants are unable to provide Biometrics and/or obtain their entry visa if required. Without Biometrics or the entry-visa, the application will remain ‘in process’, without being finalized.
Persons returning to Canada from international travel including the USA are required to self-isolate on their return for 14 days. The government has instituted severe penalties for non-compliance. There are some exceptions in place for certain essential service workers.
As of April 28, 2020, New Brunswick has announced the temporary foreign workers are temporarily restricted from entering the province. Foreign workers already in New Brunswick are not affected. Further announced on April 28, 2020, is that parents who are picking their children up from a university or college are allowed to enter New Brunswick for only 24 hours. They must meet New Brunswick requirements such as physical distancing, and must wear a wearing a mask. If they stay longer than the 24 hours, they will be required to self-isolate for 14 days and follow public health requirements.
Persons returning to Canada from international travel including the USA are required to self-isolate on their return for 14 days. Canada has instituted a mandatory self-isolation plan for returning travellers, which must be approved before the traveller may leave the airport or land border. Anyone returning without a appropriate plan will be placed in government-managed quarantine accommodation for 14 days. The government has instituted severe penalties for non-compliance. There are some exceptions in place for certain essential service workers.
The Government of Canada has also has posted active travel health notices for non-essential travel to areas of China, France, Germany, Hong Kong, Iran, Italy, Japan, Singapore, South Korea and Spain due to the outbreak of COVID-19.
Patients with confirmed COVID-19 infection have reportedly had mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. If the employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.
For more information, see our In A Flash articles below:
- Border Closure
- Update for Inter-Provincial Travelling During COVID-19
- British Columbia Institutes Mandatory Self-Isolation Plans for Returning Travellers
Layoff, Termination and Payment to Employees
Can an employer temporarily lay off employees?
Yes, but there is a risk that any unilateral lay off of employees may be treated as a termination of employment under employment standards legislation or the common law. There are also statutory exemptions in many jurisdictions for unforeseeable circumstances, which may include a pandemic or government-ordered closure of a business.
A number of provincial governments are proposing amendments to employment standards legislation to address the impact of COVID-19. For example, Manitoba has amended its employment standards legislation to address the impact of the pandemic on the ability of employers to temporarily lay off employees. We are providing specific guidance for each jurisdiction to our clients through our In A Flash updates, which can be found here:
- Alberta Announces Temporary Changes to Employment Standards Rules Amid Covid-19 Crisis
- Newfoundland and Labrador Introduce COVID-19 Related Leave
- Alberta Implements 14-Day Unpaid Job-Protected Leave
- BC Employment Standards Act Amendments
- Job Protection Measures Announced for Alberta and Saskatchewan
- New Infectious Disease Emergency Leave Comes into Force in Ontario and Ontario Government Introducing Job Protection Legislation due to COVID-19 Outbreak
What happens to our employees if we are ordered to close our business by the government?
If the employer is ordered to close by health or other authorities, employers may be able layoff employees without liability under provincial employment standards legislation or the common law. Each case will be dependent on its own facts.
If we layoff our employees, are they still covered under our benefit plans?
This will depend on the language of the benefit plan document.
Employers must review their policies with their benefit plan provider and advice employees of any limitations or restrictions in coverage.
Can an employer close its business for safety reasons due to the COVID-19 outbreak?
An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location for occupational health and safety reasons.
An employer’s obligation for providing notice or pay in lieu of notice to employees in the event of a workplace closure will be governed by the specific facts of each case.
If an employer keeps an employee without COVID-19 symptoms out of work, is there a requirement to compensate the employee?
This will depend on the circumstances, including if the employee has travelled, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential contract or collective agreement requirements.
While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable. There is also the potential for reputational damage should it become publicized that employers are forcing employees to remain away from the workplace without pay.
Employers may also wish to consider whether the absence of compensation will reduce the efficacy of preventative measures in the workplace. If they will not be compensated, employees may not self-assess as critically as required or may not report issues or concerns.
What if an employee has COVID-19 and cannot work?
Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.
If the employee contracted COVID-19 in the workplace, there may be additional reporting obligations under workers’ compensation and occupational health and safety legislation.
Can an employer fire an employee if they contract COVID-19?
No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which may include COVID-19) under human rights legislation.
Presently, a number of human rights commissions have taken the position that COVID-19 is a physical disability.
Personal Protective Equipment
Do employers have to buy personal protective equipment for employees?
Employers have a duty to provide a safe working environment relative to the expected duties of the employee and the risks in the workplace. If employees run the risk of becoming infected at work because of the work they perform, the employer must provide personal protective equipment. As of March 12, 2020, public health authorities are not generally recommending personal protective equipment (e.g. masks, gloves) or any other physical protective devices.
The preventative measures being advised are hand, respiratory, and environmental hygiene and social distancing. These recommendations suggest that these measures are generally reasonable for most workplaces.
However, if you have an employee who is vulnerable (over age 65, compromised immune system, or underlying medical condition) the obligations to this employee could be different. Precisely what steps may be reasonable to protect the vulnerable worker are likely to be determined on a case-by-case basis and involve advice from public health and/or medical officials. Employers may not know if a vulnerable employee is in the workplace. As part of workplace communications about COVID-19, employers should prompt workers with individual risk concerns to raise them with the employer.
Can we prevent an employee from wearing masks at work?
Generally, yes, unless the use of personal protective equipment, such as masks, is a condition of employment or otherwise required for the employee to safely perform their duties.
Since the outbreak of the pandemic, the opinion of public health authorities on the use of masks has been evolving. Presently, the Public Health Agency of Canada (PHAC) says that wearing a non-medical mask (such as a homemade cloth mask) in the community is not proven to protect the person wearing it, but it is an “additional measure” you can take to protect others around you.
The US Centres for Disease Control (CDC) has issued a recommendation for the general public to wear “cloth face coverings” (not surgical masks or N95 masks) in “public settings where other social distancing measures are difficult to maintain (e.g. grocery stores and pharmacies”).
What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?
Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has reason to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety (which is not an inherent or normal condition of their work), the employee may be able to refuse to attend work or perform certain duties.
In the context of the COVID-19 pandemic, employers can expect to see work refusals from employees based on:
- a confirmed or presumptive case of COVID-19 in the workplace;
- a confirmed case of COVID-19 in an employee’s immediate family or other close contact;
- the risk of potential exposure to COVID-19 from contractors, customers or clients depending on the nature of the workplace or the people it serves;
- concerns from employees who are particularly vulnerable (over age 65, compromised immune system, underlying medical condition) not wishing to report to work; or
- employees with a generalized fear of contracting COVID-19 by travelling to or attending work.
Whether or not a wok refusal based on the above or other grounds is reasonable will depend on individual circumstances. In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.
Employers should also understand that, where the regulator is required to resolve the work refusal, the way the regulator does so could be different than might ordinarily occur. 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.
Can employees be disciplined for a work refusal?
Provincial occupational health and safety legislation generally provides that employers cannot dismiss, discipline, or intimidate employees for properly exercising a health and safety right. An employer may be justified in imposing discipline if the work refusal has been exercised in bad faith. However, the ability to discipline will depend on the circumstances of the work refusal and the language in the applicable work refusal right. An employer considering discipline for a refusing worker should do so after consultation with counsel in all but the clearest of cases.
Can employees refuse travel as part of their job duties?
That will depend on the nature of the employee, the specific job and the travel destination. For example, employees over the age of 65 may not wish to travel at all. If there is a legitimate work refusal for safety reasons, occupational health and safety legislation will govern the resolution of any work refusal.
For more information, please see our In A Flash entitled Work Refusals and COVID-19.
Can an employer require an employee to work remotely?
In the current climate, a request that employees work remotely will likely be seen as a reasonable measure to encourage social distancing, given the advice of federal and provincial government authorities.
How do we monitor employees working remotely?
Employers should have a written policy which governs employees who are required to work remotely and addresses such things as working hours, productivity, remote meeting protocols, BYOD issues, etc.
What if an employer needs to replace sick employees on a temporary basis to operate?
An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work.
Employers in unionized workplaces should be cognizant of collective agreement and provincial labour laws applying to unionized workplaces.
Employers should have already assessed how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work. If you have not done so already, do so now.
Workers’ Compensation Issues
If an employee contracts COVID-19 at work – are they covered by workers’ compensation?
Possibly, but the assessment of whether the employee is entitled to compensation would be assessed on a case-by-case basis. Workers compensation boards will have to assess whether COVID-19 is an occupational disease: e.g. it was caused by and arose out and in the course of employment.
Generally, in order to successfully obtain workers compensation benefits arising from a COVID-19 diagnosis, a worker must be diagnosed with an illness and the exposure leading to the diagnosed illness occurred at the workplace or was a significant contributing factor in the development of the illness.
This means that if a worker is to receive benefits due to COVID-19, the worker must be diagnosed with COVID-19 as a result of a work-related exposure. If a worker has cold or flu-like symptoms this will not automatically indicate that they have a covered illness, or that the illness is work-related. A worker choosing to self-isolate as a precaution, or being sent home as an employer’s preventive decision, would likely not qualify for workers’ compensation coverage.
Many provincial workers compensation boards have now issued guidance on how to respond to claims arising from COVID-19.
Like other claims if a worker is entitled to benefits, the worker may be eligible for wage loss benefits that include any period in quarantine pre-diagnosis, healthcare benefits, and permanent impairment benefits arising from the disease. In cases of fatality, the worker’s survivors could receive benefits under workers compensation legislation as well.
The employer’s obligation to report claims has not changed.
Therefore, regardless of whether the employer agrees that the case meets the criteria for adjudication or allowance, employers should still be reporting the claim (i.e. filing a Form 7). Most provinces have issued guidance to employers similar to that in Ontario “While the nature of some people’s work may put them at greater risk of contracting the virus, for example those treating someone with COVID-19, any claims received by the WSIB will need to be adjudicated on a case-by-case basis, taking into consideration the facts and circumstances.”
As of March 20, 2020, the US-Canada border is closed for non-essential travel, with few exceptions.
Beginning March 16, the Government of Canada has issued a number of Orders in Council (“OIC”) in relation to travel restrictions. The current OICs were issued on March 26th: one relating to travelers from the USA and another for travelers from other parts of the world.
Any person, regardless of nationality, is prohibited from entering Canada if they show symptoms of a fever and cough or fever and breathing difficulties, with few exceptions.
For entry from the USA, it is restricted to essential travel only, with limited exceptions. Even within these limited exceptions, a person wanting to enter Canada for an essential purpose is prohibited if they have been outside of Canada or the USA in the last 14 days. Some exceptions include immediate family members and crew members.
For entry from another country other than the USA, any foreign national who is not a Canadian citizen or Permanent Resident of Canada will not be allowed to enter Canada. Some of the relevant exceptions are as follows:
- an immediate family member of a Canadian citizen or permanent resident of Canada;
- the member of a crew as defined in IRPR;
- the holder of a valid work or study permit;
- a person whose application for a work or study permit was approved, but that permit has not yet been issued;
- licensed health care professionals;
- a provider of emergency services.
Although the above information is current, airline personnel and CBSA officers are having to put it into practice. We are hearing of refusals to board persons who fall under the various exceptions which is understandable given the penalty for non-compliance: airlines can be fined $25,000 for allowing non-exempt persons to board. Approved workers will need to self-identify to the airlines by showing their work permit or work permit approval letter. It may be a few days or weeks before boarding runs more smoothly. Trade and supply chains, including trucking, will not be impacted by these closures.
Special measures have also been put in place for agricultural and food processing workers who are considered essential in our economy. Anyone entering or re-entering Canada is required to self-isolate for 14 days on entry despite these special measures.
As of April 28, 2020, New Brunswick has restricted the entry of new temporary foreign workers. Foreign workers already in New Brunswick are not affected.
Immigration Canada has released a new immigration policy suspending processing of non-essential visitor visa applications and electronic travel authorization (eTA) applications. IRCC will continue to process temporary resident visas (entry visas) and eTAs for those who qualify under one of the travel exemptions. IRCC will also process study permit applications for the fall study term. However, at this time only students with a study permit issued before March 18, 2020, may travel to Canada.
Immigration Application Issues
Immigration, Refugees and Citizenship Canada (IRCC) understands that applicants abroad for temporary and permanent residents are being significantly impacted by the disruption of services caused by the COVID-19 pandemic. As such, IRCC has implemented special measures to assist temporary residents, permanent residents and applicants who wish to come to Canada from China, Iran and South Korea. It is possible that this list of countries may be expanded.
The deadline to provide Biometrics has been extended from 30 to 90 days.
IRCC have advised that all submitted applications are being processed, but that there may be delays. Many Visa Application Centres are closed. IRCC has also advised that they will allow 90 days to comply with requests for additional documentation. If an applicant is not able to comply within the 90 days, they or their Representative may request an extension. IRCC should then allow an additional 90 day extension.
Overall, processing times have significantly increased for all out-of-Canada applications, which employers and applicants should keep in mind.
Applicants affected by travel restrictions who have applied for a work permit may withdraw and receive a refund.
New applications for permanent residence will continue as usual, although it is possible that Express Entry draws will be suspended. If unable to provide a required document such as a Medical Confirmation or Police Certificate due to service disruptions as a result of COVID-19, applicants must provide a letter of explanation in order for their application to be deemed complete pursuant to R10 of the Immigration, Refugee Protection Regulations. In this instance, IRCC will provide a 90 day extension to provide the required document. Further extensions are available if required.
All in-person landing interviews have been cancelled until April 13, 2020. Previously scheduled in-person landing interviews will be conducted by phone. IRCC will contact the applicant and Representative to confirm the date and time of the phone-landing.
Applicants approved as permanent residents before March 18, 2020 are able to travel to Canada to be landed. Applicants who have been approved as a permanent resident and are unable to travel to Canada before their Confirmation Of Permanent Residency (COPR) expires must submit an online Web Form to explain why they are unable to land. Once able to travel, applicants are instructed to submit a new Web Form. IRCC will be in contact about next steps.
All citizenship ceremonies and citizenship tests are cancelled until further notice.
Employment and Social Development Canada (‘Service Canada’) has confirmed that they will provide extensions to positive Labour Market Impact Assessments (“LMIA”) that have already been issued, where necessary. Any newly issued LMIAs are valid for nine months rather than six.
States of Emergency
The federal Quarantine Act and Emergencies Act both contains provisions permitting the federal government to respond to public health emergencies.
Provincial public health or emergency laws contain provisions which are similar to the Quarantine Act but are restricted to within provincial borders. These laws permit the provincial government to do all reasonable acts necessary to lessen the health emergency.
In addition to provincial and territorial declarations of emergency, various municipalities across Canada have enacted bylaws which allow the enforcement of social distancing and other requirements within their municipal boundaries. A failure to abide by those bylaws can result in fines – which can be substantial.
While it would be unwieldy to list each municipality in Canada and their COVID-19 related bylaws in this article, employers should familiarize themselves with the requirements of the municipality in which they operate.
We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.