This document summarizes a presentation about the top challenges facing human resources professionals during the COVID-19 pandemic. It discusses bringing workers back to work safely, the risk of constructive dismissal if changes are made unilaterally, safety in the workplace, the right to refuse unsafe work, and programs like the Canada Emergency Wage Subsidy. The presentation emphasizes having proper employment agreements and policies in place, documenting all decisions made, and keeping updated on COVID-19 workplace laws and guidelines.

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. 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.
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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
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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
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● 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
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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
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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!
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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?
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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
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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
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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
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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
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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
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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
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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!
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Keep up to date
Our running blog on COVID-19 and the workplace
https://www.rudnerlaw.ca/updates-on-covid-19/
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Questions
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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
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