As most part of Ontario is allowed to reopen gradually in its second stage, there are rising concerns from the employees in regards to risk associated with possible exposure to COVID-19, when being recalled to their workplaces soon by their employers.
The following are commonly asked questions in relation to employees' rights arising from the second phase of reopening:
I) RIGHT TO WORK REFUSAL
An employee can be entitled to his or her right of work refusal, not merely based on fears of possible COVID-19 infections in the workplace, but to be supported by a reasonable and objective belief that the workplace will put his or her personal health and safety at risk in accordance with the Occupational Health and Safety Act.
The proper implementation of preventative measures, such as physical distancing and workplace sanitation etc., may give no excuse to employees' rights of work refusals, unless further justification is validated that the workplace is unsafe from COVID-19.
Whenever an employee has any doubt regarding to whether safety measures in place is complying with the guidelines imposed by the government, he or she should report the related concern(s) to the employer for investigation. Further guidelines to help protect workers, customers and general public from the COVID-19 virus in the second phase of reopening can make reference to the website of Ontario government at https://www.ontario.ca/page/resources-prevent-covid-19-workplace.
An employer should be given a reasonable time to rectify the particular issue(s) if it doesn't follow the safety guidelines, while an employee can remain his or her work refusal until the issue(s) will be resolved.
After that, an employee can only continue to refuse to work, if there is still a reasonable ground to believe that the workplace remains unsafe from the pandemic after the problems are being fixed. At this point, an inspector from the Ministry of Labour can be called to investigate whether there are appropriate measures implemented in the workplace. Nevertheless, an employee can be considered as his or her job resignation, if he or she insists on the work refusal, when the workplace is proven as safe or safe with personal protective equipment after the inspection.
II) RIGHT TO WORK REMOTELY
For employees who require to take care of their children due to school closures without other alternatives can make requests to work from home from their employers.
Depending on the nature of work or industry, any employer is obligated to provide modified jobs and accommodate an employee accordingly if possible except till the point of undue hardship, on the basis of family status as one of the protected grounds under the Ontario Human Rights Code.
More protected grounds can be referred to s. 2(1) of the Ontario Human Rights Code which prohibits any action to discriminate against these grounds.
III) JOB-PROTECTION LEAVE
The Ontario Regulation 228/20, the Infectious Disease Emergency Leave, the new regulatory amendments to ESA is enacted on May 29, 2020 --- which is retroactive to January 25, 2020 and remains effective during the COVID-19 period.
Pursuant to s. 50.1 (1.1) (b) of the Employment Standards Act, 2000, the job-protection leave for employees who are unable to work for the following reasons:
- The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease; or
- The employee is acting in accordance with an order under s. 22 or 35 of the Health Protection and Promotion Act, or
- The employee is in quarantine or isolation as a result of information of directions related to the designated infectious disease issued to the public;
- The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease; or
- The employee is providing care or support to an individual because of a matter related to designated infectious disease that concerns that individual, including, but not limited to , school or day care closures; or
- The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstance, cannot reasonably be expected to travel back to Ontario
IV) WSIB BENEFITS/ EI SICK BENEFITS
i) WSIB Benefits:
If an employee is unfortunately infected with COVID-19 after being recalled to work, he or she can be entitled to WSIB benefits if an infection has occurred during the course of employment, while an employee is receiving the diagnosis and treatment of COVID-19. The possible entitlement of WSIB benefits in this situation may include Loss-of-Earnings, Health care benefits, Non-Economic Loss (permanent impairment), Survivor benefits (in case of death) etc.
ii) EI Sick Benefits:
For those workers, including self-employed, are unable to work because of being infected or quarantined with COVID-19. It is also applicable to any caregiver of those who are impacted by COVID-19. This benefit can pay up to the maximum of 15 weeks if eligible.
Any other lawsuit against the employer can be pursued if relevant, when the exposure to COVID-19 is a result of an inadequate protection for a safe workplace to the employees.
The reported number of coronavirus cases in Ontario are on the downward trend to mark below 200 cases in few consecutive days straight. The Ontario premier is taking an gradual approach of reopening with caution on its way to move back to normality, meanwhile the safety guidelines are imposed in the workplace by the government to provide a safe environment to all employees during this transition.
Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for your independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.
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