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Covid 19 webinar - the top challenges facing human resources professionals - may 8, 2020

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Covid 19 webinar - the top challenges facing human resources professionals - may 8, 2020

  1. 1. COVID-19 and The Workplace Presented by: COVID-19: The Top Challenges Facing Human Resources Professionals Stuart Rudner stuart@rudnerlaw.ca 416.864.8501Osgoode Professional Development May 8, 2020 Brittany Taylor brittany@rudnerlaw.ca 416.864.8502
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer This information is current as of May 8, 2020 and is provided for informational purposes only. These materials are not to be reproduced in any manner without the consent of Rudner Law. This presentation is not provided for the purpose of providing legal advice.  Every situation is unique and involves specific legal issues.  If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Agenda 1. Bringing Workers Back 2. Dismissal - what if you don’t bring them back? ○ Risk: Constructive Dismissal 3. Safety in the Workplace ○ Work Refusals 4. The Canada Emergency Wage Subsidy (CEWS) 5. Lessons learned 6. Q&A 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bringing Workers Back: Who ● Generally, do not have to return ALL employees to work ○ Contract, policy, or collective agreement setting out who must be recalled to work? (e.g. based on seniority) ● Ensure no breach of human rights, no reprisals ● Consider who needs to be on-site, who can work remotely ○ Some workers may not be needed at all ○ Some may be needed, but not full-time ○ For those on-site, consider whether hours need to be reduced or staggered 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 ● Recalling employees prior to expiry of applicable statutory layoff period ○ Consider recall notice requirement: in Ontario, employers can require return to work “within a reasonable time after being requested to do so” ○ Is procedure set out in contract, policy, or collective agreement? ● Seek legal advice before making any changes (e.g. reducing hours / pay) ○ RISK: Constructive Dismissal Bringing Workers Back: How 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Temporary Layoffs ● Temporary interruption in employment ● Right to recall - but no obligation ● EI/CERB ● 13 weeks or less in 20 consecutive weeks ● Extend to 35 weeks or less in 52 consecutive weeks if ○ Supplemental Unemployment Benefit provided ○ Continuation of benefits ○ Etc. ● If exceeds temporary lay-off period, then it is termination ○ Date of termination is first day of layoff 6
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Dismissal ● Temp layoff can → deemed dismissal ● Constructive dismissal = dismissal Must provide Notice of Dismissal or Pay in Lieu Three potential sources of entitlement: 1. Employment Standards legislation 2. Common Law - “reasonable notice” 3. Contract ● It’s not “a week per year” or “a month per year”, but it can be up to two years! 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Risk - Constructive Dismissal Did you lay off employees or reduce hours or pay? Constructive Dismissal: A unilateral and substantial change to a fundamental term of the Employment Relationship ● Unless contract gives you the right ● Or employee agrees ● BUT: Will existing laws be applied in the same way as before? 8
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Safety in the Workplace ● Duty to provide safe work environment ● Activate Health & Safety Committee ● Is remote work or social distancing possible? ● Protective equipment: masks, gloves, etc. ● Frequent hand washing/sanitizing ● Testing? ● Communicate guidelines, process for reporting concerns 9
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Work Refusals ● Employees have right to refuse unsafe work ○ Must be legitimate concern ○ Specific to workplace ● If employee refuses → employer MUST investigate → advise employee whether safety risk resolved or not ● MOL can be asked to investigate ● Consider duty to accommodate Note: MOL has added resources 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Refusal to Return? ● Legitimate reasons to refuse to return to work: ○ refusing unsafe work ○ need for accommodation ○ leave of absence ● Absent the above, employees required to attend at work ○ discipline ○ resignation/job abandonment 11
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Canada Emergency Wage Subsidy (“CEWS”) ● 75% on first $58,700 normally earned by employees ($847 per week) ○ Employers must make “best efforts” to top-up to pre-crisis salaries ● Program in place for 12-week period – March 15 to June 6, 2020 ○ Legislation leaves open possibility of future qualifying periods ● Reduction in revenue: 15% for March 2020, 30% for April and May 2020 ● NO active work requirement - simply must be paid CEWS will be provided to a qualifying entity in respect of eligible remuneration paid to an eligible employee in a week during a qualifying period up to a maximum of $847 per week 12
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Canada Emergency Wage Subsidy (“CEWS”) Interaction with Other Programs ● Temporary Wage Subsidy - receipt of 10% temporary wage subsidy will reduce amount available under the CEWS for same period ● Employment Insurance Work Sharing Program - EI benefits received by employees through Work-Sharing Program will reduce benefit that employer is entitled to receive under CEWS FORMULA: A (CEWS) - B (Temp. Wage Subsidy) - C (Work Sharing) + D (Credit for CPP, EI, etc.) = eligible amount per employee 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Canada Emergency Wage Subsidy (“CEWS”) ● Applications now open through CRA My Business Account or online ○ CRA developed a calculator to assist employers to calculate CEWS entitlements ○ https://www.canada.ca/en/revenue-agency/services/subsidy/emerge ncy-wage-subsidy/cews-calculate-subsidy-amount.html 14
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Lessons Learned ● Use employment agreements for all employees ● Have enforceable termination clauses ● Include temporary layoff provisions ● Update policies ○ Health and Safety ○ Remote work ○ Sick Days ● Be prepared Document, Document, Document! 15
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Keep up to date Our running blog on COVID-19 and the workplace https://www.rudnerlaw.ca/updates-on-covid-19/ 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Questions 17
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 THANK YOU! Feel free to contact us if we can be of assistance. We’d be glad to speak with you. 416.864.8500 905.209.6999 www.rudnerlaw.ca info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 ➢ Follow our blog at rudnerlaw.ca/blog ➢ Check us out on LinkedIn, FaceBook, and Instagram ➢ Tune in to Fire Away, our monthly online show ➢ View our videos on our YouTube channel ➢ Listen to our podcasts ➢ To receive regular Employment Law updates and keep on top of what we are up to, sign up for our newsletter at rudnerlaw.ca/newsletters 18

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