The federal government has made a number of key changes to Employment Insurance (EI) benefits to help Canadians impacted by the COVID-19 pandemic. The new measures include support for those not normally eligible for EI, temporarily waiving the mandatory one-week waiting period for EI sickness benefits for workers in quarantine or self-isolation, and eliminating the need for medical certification to access EI sickness benefits.

Below, BNN Bloomberg speaks with Sunira Chaudhri, a Toronto-based employment lawyer and partner at Levitt LLP, about employee rights and options if they are facing a temporary layoff.

Answers have been condensed for brevity.

What are the first steps you should take if you’re temporarily laid off?

The first step is communicating with your employer. Figure out if your employer is willing to make a commitment with respect to your return to work. If it’s a short period, you might want to agree to it. If there’s no certainty, especially if you’re a high-paid or long-service employee, or you simply can’t afford to go weeks without pay, getting legal advice about whether it’s worthwhile for you to commence a wrongful dismissal action is a really prudent and important right. Many employees believe because a layoff is not illegal, it gives an employer an absolute right to use it - but it doesn’t.

What are your rights under a temporary layoff? Some companies are asking employees to take unpaid sick leave or use vacation days.

If you did not agree to being temporarily laid off and it’s not in your employment agreement, you can claim wrongful dismissal damages. An employer does not have an inherent right to lay off the employee. The first thing you should assess is whether you should be seeking wrongful dismissal damages and determine your employment to be at an end. You may want to get some legal advice to make that determination. For employees that have clarity from the company [on the length of the shutdown], you may be willing to work with your employer about what you could do to bridge the gap – like using your vacation days. If you have been put into self-isolation or quarantine, using the EI sick benefits to help bridge the gap until the employer can bring you back is also an option. If you don’t have certainty on when you can get back to work, again, you might want to treat your temporary layoff as a permanent termination so you can seek damages.

Can a company force you to use vacation pay to bridge the gap?

Employers actually can dictate when employees take vacation.

Are there time limits for how long a temporary layoff can last?

It cannot last for more than 13 weeks in any 20-week period. Employers can extend the layoff beyond 13 weeks but it has to be less than 35 weeks in any 52-week period. Generally speaking, if employers want to take advantage of a layoff, they have to continue extending benefits to the employee during that time, even though the worker might not be paid.

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If you don’t accept your temporary layoff, could that entitle you to severance?

If you don’t accept a temporary layoff, you can take the position that you’ve been terminated. If an employer hasn’t placed a term in your employment agreement that allows it to temporarily lay you off then it doesn’t have a right in common law to do that. Full-time employees are entitled to ongoing continuous work and when there’s a disruption, they can decide if they want to work with their employers on a term. Or if the employee simply can’t afford it or doesn’t want to, they can take the position that their employment contract has been breached so you might be entitled to severance.

The smartest thing to do is figure out if it’s worth it. If you’ve been working for a couple of months and you’re not paid very much, it might not be worth pursuing a claim. If you have some years of service under your belt, it might be worth it for you to get some certainty in these uncertain times and make a claim for wrongful dismissal. If you’ve signed an agreement to a temporary layoff, you haven’t lost the opportunity to exercise your right for it to be treated as a termination. It also doesn’t release the employer from potential claims, you might be bringing against your employer for disrupting your pay.

What if you’ve been fired during the COVID-19 pandemic? Should you sue?

You should consider it. You may be eligible to bring additional damages against employers that are terminating employees during the early stages of COVID-19, given that employers know the job market has been eviscerated. While this shouldn’t be a time to apply undue pressure on employers, larger employers in particular could be alive to additional claims and reputational impacts. The claim would be bad faith damages or bad faith manner of dismissal. We don’t want employers to take advantage of the crisis, especially the very big companies because, yes, they are being impacted by the same type of disruption but they have a better ability to withstand this.

 

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