COVID-19 Phase 2 Re-Opening in Hamilton: Do I have to go back to work?

As Hamilton gears up for “Phase 2” of the re-opening this Friday (June 19) and COVID-19 pandemic restrictions loosen, a growing number of businesses are calling their employees back to work. Understandably, there’s a lot of confusion about what this means for employers and employees. If your workplace re-opens do you have to go back to work? What COVID-19 safety measures are mandatory on re-opening? If you refuse to go back to work, will you lose your CERB or EI benefits?

NOTE: This post is general information, not legal advice. If you are unsure if it is safe or legal to return to work you should contact an employment lawyer or your union as soon as possible. Work refusal is complicated, and the legal issues raised by COVID19 in the workplace are new, unusual and change quickly. Consult current resources or a lawyer wherever possible.

Employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

This post was published on 18 June 2020.

DO I HAVE TO RE-OPEN?

If you’re an employer, you have a choice about re-opening. You can choose not to re-open or to re-open in a limited or safer way. While there are considerable economic pressures on businesses after 3 months of closures, the Occupational Health and Safety Act requires you to take all reasonable precautions to keep employees safe and healthy at work. If you can’t re-open safely, you may face Ministry of Labour orders to change your practices or even close, as well as fines and, in extreme cases, even jail time if workers become sick and injured due to a failure to take reasonable precautions. Employers should consider the specific nature of their business, physical workplace, employee group and customer base to determine what measures might keep employees safe.

HOW DO I KNOW IF OUR COVID-19 PRECAUTIONS ARE REASONABLE?

We encourage employers and employees to get familiar with the Ontario government’s industry-specific Resources to Prevent COVID-19 in the Workplace and with local public health information. When in doubt, consider calling an expert. This may mean calling your local public health authority, a lawyer or expert in the science of COVID-19, like a doctor, nurse, or scientist.

Some basic safety steps include:

• Providing hand sanitizer and handwashing stations
• Providing masks for workers
• Mandating masks for customers and clients
• Enforcing social distancing between workers, customers and clients
• Frequent cleaning of surfaces
• Training on health and safety measures, including how to wear masks, properly wash hands and clean surfaces. This may seem like basic stuff, but it’s an employer’s job to train on health and safety measures. And, you’d be surprised how many people make simple mistakes using masks without training!

DO I HAVE TO GO BACK TO WORK?

If your employer is taking all reasonable health and safety precautions, they can probably require you to go back to work. In some exceptional cases, your employer may need to keep you on leave or continue your work from home arrangement. For example, if you still do not have childcare (or elder care) and cannot obtain it. Likewise, if you have a disability that means you have been advised by your doctor or public health to continue to self-isolate, your employer may need to keep you on leave or continue your work from home arrangement.

If you don’t have a childcare/eldercare or disability-related need, you may be out of luck if you just don’t feel comfortable. As our more detailed blog COVID-19 work refusals post on work refusals explains, the law only protects you if you have reasonably held belief that your workplace is unsafe and follow a specific procedure when your employer disagrees. Of course, no law prevents you and your employer from trying to work out compromises that work for both of you – though not everyone will feel comfortable trying to negotiate their working conditions.

WHAT IF I REFUSE TO GO BACK TO WORK?

If your workplace is safe for you and there are no childcare/eldercare or disability-related reasons why you can’t go back to work, your refusal could lead to workplace discipline. In a worst case scenario, this could mean dismissal. In addition, you could face the loss of CERB benefits or EI benefits, since those programs expect you to go back to your job unless you have a very good reason.

However, if you are refusing to return because your employer is not taking reasonable COVID-19 precautions, you have options. Our more detailed blog post on COVID-19 work refusals explains the process of refusing unsafe working conditions. We encourage employees who are considering work refusals due to COVID-19 to call their union or an employment lawyer in advance since it can be complicated.

Similarly, if you are unable to return because you have childcare/eldercare or disability-related reasons, you may be protected by the special COVID-19 leaves in the Employment Standards Act or similar protections in the Canada Labour Code. You may also have Human Rights Code rights to have your family status or disability related-needs reasonably accommodated to the point of undue hardship.

We have more detailed blog posts here:

• Parental Status Accommodation
• Provincially regulated employees’ COVID-19 Leaves (most employees in Ontario are provincially regulated) NOTE: new rules about converting temporary layoffs to leaves of absence are not yet covered on our blog. If you’ve been laid off more than 13 weeks, consider calling an employment lawyer to find out about how these rules may impact you.
• Federally regulated employees’ COVID-19 Leaves (examples of federally regulated employees include airline, bank, and inter-provincial transportation workers)

IF I REFUSE TO WORK BECAUSE MY WORKPLACE IS UNSAFE CAN THEY CANCEL MY CERB?

While we don’t know much about how CERB disputes will be dealt with yet, EI has always included an opportunity to explain a refusal to return to work. We expect CERB will do the same. Both EI and CERB use the phrase “voluntarily quit”, for example. This phrase has been interpreted by EI decision makers not to include employees forced to quit their jobs because their workplace was unsafe, who were medically unable to work, or who faced serious discrimination on the job. We hope CERB will follow EI’s lead and will continue to monitor the situation. Since it’s still a very new program, we encourage people who are refusing to return to work and have concerns about their CERB or EI to contact their union or an employment lawyer as soon as possible to get advice specific to their circumstances.

If you have other questions about CERB, check out our CERB info sheet.

WILL I GO TO JAIL OR GET FINED FOR GETTING CERB?

We really hope not. Recent proposals to impose large fines or jail time for those who have “fraudulently” taken CERB have not yet been made law. We hope that they won’t be. If you think this is an issue, you may wish to write to your Member of Parliament to express your opinion. However, even if the government chooses to impose fines or jail time, we believe most people are honest and not trying to defraud the system. Typically, serious fines or jail time for benefit “fraud” are reserved for the most extreme cases, not for innocent mistakes. We don’t know for sure how CERB would approach this issue, but we expect that CERB would take a similar approach. It’s more likely that you’d be ordered to pay the money back.

As Sarah Molyneaux recently explained to The Toronto Star, we do worry that this threat will discourage people from applying for benefits that they are entitled to. Again, if you want to join us in pushing back on the threat of fines or jail time for people taking CERB, you can find your Member of Parliament’s contact information here.