Common challenges

COVID-19 Question Series: Answers to Your Questions About Sick Days, Vacations Pay, and More

April 01, 2020

We received many questions during our recent webinar on COVID-19. In case you missed it, you’ll find a link to the recording at the bottom of this article. In a difficult time like this, we wanted to make sure the answers to these challenging questions were available, so we’ve created a multi-part question series on our blog to help ensure employers and HR professionals have access to the information they need. We will continue to post these COVID-19 Question Series articles, so keep your eye on our blog and subscribe for updates.

In this article, we address questions we’ve received about sick days, vacation pay, and other instances where it may not be clear whether you must pay employees.

Should we as an employer increase the number of sick days or ask employees to use their vacation time when they are sick?

Employers should consider extending and increasing the number of paid sick days. Please keep in mind that many jurisdictions have implemented COVID-19 measures to protect against job loss. These new leaves mean that employees have access to job-protected leave if they contract COVID-19.

We recommend you provide employees with information related to their available vacation time or other accounts that would provide paid time off. The employer cannot force the employee to use this time but rather support them if they request to use it.

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Is an employer required to pay out vacation balances when putting employees on a temporary layoff?

No. However, you should provide employees with information related to their available vacation time and, if possible, let them take this time before beginning the temporary layoff. Please keep in mind that this needs to be the employee’s choice.

 

As a precaution, the Public Health Agency of Canada is asking anyone with symptoms (fever, cough, sneezing, sore throat, or difficulty breathing) to stay home for 14 days; however, EI only covers an illness or injury. How do we pay employees during this isolation period? Mandate vacation or temporary layoff?

If an employee is experiencing symptoms related to COVID-19, this may be considered sick leave. You should provide an ROE placing the employee on sick leave; within the comment, state “symptoms associated with COVID-19.” If the claim is denied, the employee can apply for the Emergency Care Benefit through CRA that will be available in April.

With the directive announced March 23 to close down non-essential business in Ontario, are employers obligated to continue to pay salaried employees?

As a company, you are not obligated to pay employees when they cannot work. This applies to salaried employees as well, but keep in mind what you have written within your employment contracts. For example, stating in an employment contract that you pay an individual a set annual amount divided into equal biweekly payments with no mention of hours of work or temporary layoffs could be problematic. If you attempt to halt payment of that individual’s wages or put them on a temporary layoff, it could lead to a claim of consider constructive dismissal, as you are essentially breaking the terms of employment.

During unprecedented times like these, your business may have no choice but to issue temporary layoffs to salaried employees, especially if it would be the difference between remaining in business or closing the business down completely. Depending on the situation, this scenario could be considered frustration of contract.

We strongly encourage businesses to talk with their employees and involve them in crafting solutions.

The business may be able to consider remote work with a focus on projects, reduced hours, or look at other short-term strategies that support both the business and its employees. If you are considering reducing hours or turning to temporary layoffs, you should consult with legal counsel to determine the potential legal implications.

 

Are employers required to pay employees who are considered non-essential if staff fall into this category, or is it considered unpaid leave?

Employers are not required to pay staff who cannot work. If an alternate arrangement cannot be made using available paid time off banks or remote work, then the business would need to consider a temporary layoff. If employees experience a break in earnings of seven days or more, you must provide a Record of Employment.

When issuing a temporary layoff, use Code A: Shortage of Work on the ROE.

 

If an employee has received an ROE and applied online for EI, and then are subsequently provided with paid time off like vacation or sick time, will this affect the processing of their EI claim or the amount of EI they ultimately receive?

If an employer provides an employee with paid time off after the last day of work as indicated on the ROE, they must amend the ROE to reflect the new last day of work. Doing so may delay processing the employee’s application and the start of EI payments. If the employer keeps the same last day of work but provides additional payments (such as paying out the sick time bank), they do not need to amend the ROE, but the employee must report the additional earnings to Service Canada. Once these additional earnings are reported, the employee would receive a reduced EI entitlement for that week.

In light of the current backlog of EI applications, we recommend not amending ROEs, as this will create further strain on the system and could significantly slow down the employee’s application. However, if you are considering offering employees access to paid time off or additional entitlements, connect with employees to discuss the available options, being clear that choosing to provide additional paid time off or additional payments may delay the start of EI payments or reduce the employee’s entitlement to EI benefits. If you connect with employees, notify them that their vacation and sick time accounts remain available to them upon their return.

Get the webinar replay and more information

Click here to download the webinar replay and get answers to the top
questions about the coronavirus.

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As the COVID-19 pandemic progresses, keep checking back here.

We will continually update our blog as frequently as possible during this time to provide you with the resources and answers you need. You can also read the previous article in our COVID-19 Question Series: COVID-19 Question Series: Answers to Your Questions About EI, ROE, and Layoffs 

 

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Topics: Health and Safety, HR Challenges