March 17 2020 – Ontario has now declared a State of Emergency.
How does this impact employers?
The orders that are given could impact the way you operate your business. Please stay on top of these orders and ensure that you are compliant. i.e. orders can and do range from travel regulations, closing your business office or establishment, fixing prices for goods, services or resources, etc. A state of emergency does have some defined timelines however in reality, it can stay in place until such a declaration is no longer necessary.
If you are ordered to shut down your physical business office, what do you do with your employees?
If you cannot operate your business virtually – or the shut down includes the entire business virtual or not – you may lay off your employees – they are entitled to a job protected leave of absence without pay until they are reinstated. I am ready and prepared to help you prepare a lay off notice and can assist you in notifying your employees virtually either by direct phone call to them or via video conference.
Layoffs generally can last up to 13 weeks, however under special circumstances, they can extend beyond this…we are waiting to hear if the government will look at extending this and granting this pandemic as a “special circumstance”. Once the lay off time period has been met (meaning the employee has not been recalled to work and the business is not able to recall them at this time, they would be considered to be terminated. In this case, the employee would be entitled to termination pay.
I have employees who will be devastated financially if there is a lay-off. What can I do?
A company can always provide some kind of paid leave before enacting a true layoff, however this is a financial investment and may not be in the budget of the company. The government continues to say that they are actively working on plans to help employees during a layoff or in situations where they cannot work due to reasons stemming from this crisis. Right now, there is EI. Employees may also qualify for income replacement. We are waiting to hear what else might be available.
Can I terminate employees?
No. You cannot terminate employees due to this crisis. The employees are protected.
If you have documentation of performance concerns and were getting ready to terminate them before this crisis arose, are you in a better position and can you terminate in this case? First, documentation is key, so that is great, however, I would not advise terminating them until this crisis has ended or until they are not protected – and even then, I would add some time before going forward. It would certainly not be in your best interest to do a termination during this time.
As a company we need our employees to work longer in response to the pandemic, can we do this?
It depends on the situation. You may be able to do this if it is necessary i.e. to deal with an emergency, if something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services, if something unforeseen occurs, to ensure continuous processes, to carry out urgent repair work to plant/equipment – you will want to look into this further to ensure the reasoning qualifies and is absolutely necessary.
Of course, overtime pay is required (unless the employees are exempt under the ESA).
Please know that you are not alone. If you need assistance, please reach out to us. www.1stophrconsulting.com or info@1stophrconsulting.com
We are all in this together.