I Can Do My Job From Home—But They Want Me To Come In: COVID-19 Employment Questions, Answered

This is our second Q&A with Lindsay Scott, a Toronto-based employment lawyer and a partner at Paliare Roland Rosenberg Rothstein LLP, about the effects of COVID-19 on Canadian businesses and employees. You can read the first one here.

What safety level is a job expected to provide by law?

Employers have a duty to protect the health and safety of their workers. It's a really big deal if they fail in this responsibility—they could face fines and penalties and in serious cases, even criminal prosecutions.

In order to meet this obligation during the pandemic, it's critical that employers update and implement health and safety policies and practices in their workplaces to address the risks associated with COVID-19. It's going to vary from workplace to workplace and province to province, but the expectation is that the employer will do everything possible to protect the health and safety of their workers. That could include staggering schedules, providing Personal Protective Equipment (PPE) and information on how to use it, as well as developing policies on dealing with suspected cases of COVID-19 in the workplace and on dealing with members of the public. It can involve what we call “engineering controls,” which is essentially a physical restructuring of the workplace: for example, installing Plexiglas barriers, improving ventilation systems. It can mean ensuring that hallways are one way, or having rules about use of common areas, like lunchrooms.

What do I do if I know or suspect that my job or my workplace is not following the health and safety requirements?

This was the case before COVID-19 and all the more so now: you're entitled to refuse work if you have reason to believe it's likely to endanger you. Certain frontline workers are generally not entitled to refuse unsafe work that's a normal condition of their employment, or when the refusal to work would directly endanger the life, health or safety of another person. Aside from that special restriction, if you think that your workplace is unsafe, there's a process to be followed.

Generally, you need to tell your employer about the hazard, that you feel it's unsafe and that you're refusing work on that basis. Ideally, you do that in writing. The employer has to investigate to see if the refusal is justified, and then advise you of its decision. If they correct the issue, you go back to work, problem solved. If not, you can maintain your refusal and then either you or the employer, doesn't matter which, contacts your provincial body that deals with health and safety— in Ontario, that's the Ministry of Labour—and they will investigate and then make orders if necessary.

One thing I always want to emphasize is, employees would understandably be really nervous about refusing to work in this type of unstable job market for fear that it might lead to negative consequences. By law, you cannot be subject to reprisals for exercising your right to refuse work. So no disciplinary actions or warnings or terminations for exercising those rights in good faith, even if the ministry eventually disagrees with you.

Do you get paid in the meantime?

Yes, The Ontario Ministry of Labour is of the view that the worker is “at work” during the first stage of a work refusal (while the employer investigates) and is entitled to be paid at his or her appropriate rate. During the Ministry investigation stage, an employee needs to be available at the workplace to consult with the investigator, but can be offered other work to do at the workplace, if available.

What options do I have if I feel unsafe? I have to be reasonable about it, right?

Yes, exactly. I would want to know why you feel unsafe. Is it something unique to you, like a COVID-19 vulnerability? If so, you may have rights or options under human rights legislation to seek accommodation, if there's a specific risk that you've identified in the workplace. As we've just talked about, maybe your employer has not taken any steps to modify the workplace or create policies to permit social distancing—under occupational health and safety legislation, you would have a right to refuse work if you believe that it's unsafe. If, though, you only feel unsafe because of the general existence of COVID-19, that’s just the unfortunate reality that we're all facing as we head back to work and out into the world.

What if I can do my job from home, but they want me in the office?

In Ontario, and perhaps other provinces, if you can do your job from home, your employer should allow that. In the Ontario regulation that closed various non-essential businesses, there's a provision that any business that remains open “shall operate the business in compliance with the advice, recommendations and instructions of public health officials.” That's a mandatory direction. At this time, public health officials, at least in Toronto, are recommending that employees work remotely where feasible in order to limit the spread of COVID-19. For now, there's a strong argument that employers are required to follow the advice that if employees can work from home, they should permit that.

CBC had a story about an Ottawa company, Colliers Project Leaders, asking employees to “surrender” vacation days, i.e. mark down that they took them, but continue to work. Many other workers are being told their vacation has to be used up by a certain time. Can employers make you use up vacation time? Or tell you when to schedule it? Can they take it away?

Employers generally have a right to dictate when employees take their vacation time. It's much, much nicer when everybody can agree on a time, but obviously, this is an extreme situation and so a number of employers are dictating use of vacation in order to meet their operational and budgetary needs.

Just to take a step back for a minute: in most cases, employees in Ontario are entitled to both vacation time, a minimum of two weeks off from work, and vacation pay, which is at least four percent of gross wages earned in the year before. In your typical office job, the individual generally gets two weeks paid, out of the office. In hourly jobs, some employers will pay vacation pay in a lump sum each year, or a little bit on every paycheque. Then when you're out of the office, your vacation time is unpaid. Vacation time can be waived by the employees, but you can't give up your right to vacation pay.

Right now, many employees don't see a need to use their vacation time—let's face it, where are you going to go? Your amazing summer vacation plans have vanished before your eyes. And so many, many employees aren't using their vacation time, and employers are seeing the problems that this could create. One, it's already a difficult financial time: if staff decide not to use vacation time during the year, the employer may have a significant financial obligation in the form of vacation pay. Or, as businesses reopen and folks go back to work, all of a sudden you have half of your staff requesting vacation time for the month of October. From an operational standpoint, that's not great either.

So it's okay if employers are asking staff to use their vacation time by a certain date. It's okay if they're asking them to decide now when they'll be using their 2020 vacation. It's not okay, though, for an employer to tell you that you can't take vacation days or receive vacation pay. And it's certainly not okay, as we've read about in the news, for an employer to have employees lie about their usage of vacation time or vacation pay.

On the flip side, let's say you are a grocery store worker, or in some other business that is extremely busy right now. It's completely okay for you to agree with your employer that you will not take vacation time this year, but you're still entitled to the pay.

Could you explain constructive dismissal, and the recent change to the relevant legislation in Ontario?

A constructive dismissal is where an employer fundamentally changes the nature of your employment without your consent, like changing your pay. If your pay has been cut significantly, it may trigger your right to reasonable notice or pay in lieu of notice, just like a usual dismissal situation.

In May, Ontario temporarily changed the Employment Standards Act (ESA) so that a reduction in salary or hours related to COVID-19 no longer constitutes a constructive dismissal. That is only pursuant to ESA, which is government-made law. Most employment lawyers do not believe that the new regulation affects your rights under common law, which is judge-made law. And importantly, this change to the statutory regime is only for the duration of the state of emergency. It's retroactive, to March 1, 2020 and runs to six weeks after the date that the state of emergency in Ontario comes to an end.

So right now, an employer can reduce pay without reducing hours.

Yes. But again, that's only with respect to the statutory rights. There may well be an argument that under common law, you could still pursue an argument of constructive dismissal. It’s worth speaking to a lawyer about your specific situation.

I’d assume that you’d advise someone to pursue that only if the change seemed especially unfair? Like a 10 percent pay reduction, maybe not. But if they're reducing your pay 40 percent while you're supposed to work 100 percent, would that be worth bringing up with a lawyer?

Absolutely. With constructive dismissal, the question is “has the employer made a substantial change to the employment relationship?” It's always a question of degree. If it's a five percent, a 10 per cent pay cut, it’s not clear that that would be significant enough to meet the constructive dismissal threshold. Thirty percent, forty percent? Yes, I would think so. Regardless of the change, if you make it clear that you're reserving your rights down the road for a potential claim for the lost wages, that's a smart approach. You can see how long the reduction lasts and make your decision to get legal advice at that point.

Facebook said that if workers who end up working from home permanently move to less expensive cities, it might cut their salaries, the argument being that their cost of living is lower. That led to news stories about workers more generally being faced with that type of situation. Is that possible?

It is. I have not yet heard of this happening in my practice, but I expect to in the future as more companies offer remote work options to employees. It’s a tough one, because obviously, it feels really unfair for the employees—why shouldn't the same work earn the same wage? I think many employees saw remote work as a way to potentially reduce their own costs, by moving out of expensive areas. That said, I can see from the employer side that it's possibly a way of protecting jobs amidst a period of significant economic turmoil.

Companies may try to get employees to agree to the pay cut by offering other benefits, essentially renegotiating the entire employment agreement. So now would be a good time for newly remote employees to think about any other perks, like more vacation time or flex hours, that they would want in exchange for the pay reduction. And that way, if you can reach a deal, that's great for both employer and employee

If you can't reach a deal, then employees may be able to argue a constructive dismissal. Keep in mind that this type of change is not clearly tied to COVID-19, and it's not temporary, so it doesn’t engage that new Ontario legislation we just spoke about. So employees may still be able to argue a constructive dismissal

Again, it’s a question of degree. If the pay cut is significant, then you would be entitled to a period of notice where your current salary remains in place before the change comes into effect, or a lump sum payment for that same amount (being the sum of the difference between your old pay and your new pay, multiplied by the number of weeks or months of notice). That notice period may already be set out in your employment contract, but if not, it can vary depending on factors like your age, length of service, nature of your position, etc. It's worth getting legal advice on that point.

Companies may refuse to negotiate, though. They might argue that working from home is a significant benefit to employees such that the pay cut is justified and it's a fair exchange and they don't have to give you anything else. If that happens, employees can either grit their teeth and accept the change and move on, or start looking for a new job and consider suing for damages later. Technically, an employee could also treat the change as a termination and sue right away. But that would be a very high-risk strategy for a couple of reasons. One, the strained job market. And two, if you can’t find replacement work right away, a court may question why you didn't stay in the role as a way to mitigate your damages while looking for new work. That may impact the amount of damages you are able to recover.