Common challenges

COVID-19 Question Series: More Record of Employment and Layoff Answers

April 03, 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 additional questions we’ve received about how seniority affects layoffs, the wording we used in the webinar to communicate a layoff, and how to properly complete a Record of Employment in a variety of difficult situations.

What Record of Employment codes should I use?

Based on information from Service Canada, when employees are directly affected by COVID-19 and are not working, issue a Record of Employment using one of the following codes:

  • Code D (Illness or Injury): for employees who are sick or quarantined;
  • Code A (Shortage of Work): for employees who are not working due to a temporary layoff or shutdown; or
  • Code N (Leave of Absence): for employees who are not sick or quarantined but are not working due to another reason related to COVID-19.

 

For a pregnant employee whose doctor has told them to be off work for two weeks, do I prepare a Record of Employment for her? What section do I check off for her?

Yes, you would prepare a Record of Employment using Code D (Illness or Injury).

 

If I have an employee who has gone home with cold or flu-like symptoms and wishes to self-isolate, is a Record of Employment (ROE) required? If so, which code should I use?

You should issue a Record of Employment, using Code D for illness for any employee who has gone home sick for an extended period of time.

 

Someone in our workplace tested positive for COVID-19. Because of that, most staff are choosing to work from home. However, if an employee who is working from home displays symptoms of COVID-19 and cannot complete their duties, can we issue a Record of Employment for medical or temporary layoff? Would there be risk for a workers’ compensation board claim since the employee may have been exposed to the virus in the workplace?

You can issue a Record of Employment for Code D (Illness or Injury) if the employee cannot work. It is also entirely possible that it could be considered a workers’ compensation board claim if the worker was exposed to the virus while at work. You should check with your jurisdiction’s workers’ compensation board to confirm their policies and procedures for handling claims related to COVID-19.

 

Can you provide the layoff wording that was suggested during the COVID-19 webinar?

 

Blog - Temporary Layoff Template Blue

If the temporary layoff is based on needing to close because your business is deemed non-essential, we suggest using the following language in your temporary layoff letters:

“Based on the recent government order, we must close effective (insert date) for approximately (insert number) weeks. The order could change and result in a longer disruption to our workplace. As a result of this order, you are temporarily laid off until the government approves a return to business.”

Blog - Blue line


Does seniority play a role in determining whom to lay off? Can we force employees to take vacation before laying people off? How about reducing hours?

Seniority should always be considered when determining your strategy. If your workplace is unionized, this is likely outlined within the collective agreement, and you must comply with its terms.

Non-unionized workplaces have more flexibility for layoff strategies. Seniority considerations are important when looking at potential financial risks to the business, as those with longer seniority also have a greater entitlement to termination and severance (if applicable) if the temporary layoff is eventually deemed a constructive dismissal or moves to a termination of employment.

Some news reports have been made that businesses are forcing employees to use their vacation accounts during sickness or before temporary layoffs, but we do not recommend this approach. We do, however, recommend letting employees know what is available within their vacation accounts or other paid time off accounts and supporting them if they ask to use these entitlements first.

When reducing hours, keep in mind that typically reducing pay by 20% or more could be considered constructive dismissal. If employee pay is reduced 40% or more, you need to issue a Record of Employment.

If possible, we recommend offering employees options.

 

Blog - Example Orange

“In order to respond to the pandemic and support our business continuity plan, we have no choice but to look at all options. We understand that none of these options are ideal, but we are committed to working with our employees during this time while ensuring that our business is poised to return following the pandemic.

As a result, we have the following available options:

  • Temporary layoff effective (insert date);
  • Reduction in hours from (insert current amount) to (insert new amount); or
  • Reduction in pay of (insert percentage).

Please review the options above, discuss your choices with (insert name) and let us know by (insert date) which option works best for you.

If you decide to reduce your hours or take a pay reduction, please note that this is a temporary strategy that would be reviewed every (insert time frame).”

BLog - Orage line

 

Providing options and working with your employees can help mitigate constructive dismissal concerns.


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 Sick Days, Vacations Pay, and More

 

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