Common challenges

COVID-19 Question Series: We’ve Got You Covered with Even More Answers

April 08, 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 Canadian businesses have asked on all the topics we’ve covered so far.

Is it reprisal if I lay off an employee who has exercised their rights under occupational health and safety legislation and refused to perform work that they believe to be unsafe?

If you have an employee exercising their right to refuse work that they believe is unsafe, you must treat it as you would a work refusal under normal circumstances. First you must talk with the employee and investigate their concern. In doing so, you should follow the procedure provided in your jurisdiction’s occupational health and safety legislation. This includes responding to the employee and either taking action to remedy the situation or communicating that you feel there is no risk to the employee’s health and safety.

After you investigate the situation and provide a response, the employee may still continue to refuse to work. Based on news reports, it appears that it is becoming increasingly common during the pandemic for employees to refuse to believe any measures their employer takes, no matter how reasonable, are sufficient to protect them from exposure to the disease in the workplace. If an employee continues to refuse to work, you may consider allowing the employee to work remotely. However, depending on the employee’s role, this may not be a viable option.

At this stage, you could consider placing the employee on an unpaid leave of absence to support their decision to socially isolate. Keep in mind that this may not result in any income for the employee and should be provided as an option that the employee can accept or reject.

Another strategy is to talk to the employee about their options and ask whether they want to take a voluntary temporary layoff during the COVID-19 pandemic. This strategy ensures that the employee qualifies for regular employment insurance, or whatever measures have been offered by the government. Keep in mind that this strategy has to align with business needs; if the business would need to replace the employee or temporarily hire another person, then a temporary layoff cannot be offered. However, if offering the employee and potentially all employees the option of a voluntary temporary layoff would actually assist the business in its business continuity plan, then talking about strategies like temporary layoffs to support the employee not only helps the individual but also the business. The most important point though is that a temporary layoff, if suggested, should be offered as an option, not an ultimatum.

We do not recommend that businesses consider a refusal of work as job abandonment or termination of employment.

 

Other than the Work-Sharing program, what types of Employment Insurance (EI) benefits allow for supplementary top-up by employers? Regular layoffs for shortage of work don’t allow for that.

Under normal circumstances, a layoff for shortage of work may not be allowed under a supplementary unemployment benefit (SUB) plan approved by Service Canada. However, these are not normal circumstances. While the government of Canada has not yet released any changes to the SUB program requirements, they are committed to supporting those affected by COVID-19.

SUB plans are intended for periods of unemployment caused by a temporary stoppage of work. Termination of employment caused by a re-organization or a shutdown of a plant or operation is not considered temporary unemployment.

In normal circumstances, this would apply to an individual business that has re-organized or permanently shut down a portion of their business, not to the situation today where the business is forced to shut down based on government orders or as a result of the COVID-19 pandemic. The intention of this is to avoid scenarios where the employer might permanently terminate the employee and the employee then receives through the SUB plan either an increase or decrease from their legislated entitlements upon termination. SUB payments may not form part of a separation package, be used to bridge to retirement, nor form any part of a work-sharing agreement or short-week benefits.

If a temporary stoppage of work exists, Service Canada would want to see an estimated return-to-work date on the Record of Employment to support that this is a temporary stoppage of work. If the business is considering offering supplementary benefits, they must register the plan with the government and estimate a potential return-to-work date, being mindful that this is an estimate and could change based on how things evolve during the COVID-19 pandemic.

 

How do I apply to have Service Canada approve my proposed supplementary unemployment benefits (SUB) plan?

If your business is considering implementing a SUB plan, you need to create a Supplementary Unemployment Benefit (SUB) Plan Policy. Consider using the template found in our Coronavirus (COVID-19) Resource Centre.

An acceptable plan:

  • Identifies the group of employees covered and the duration of the plan;
  • Covers a period of unemployment caused by one or a combination of the following:
    • Temporary stoppage of work;
    • Training; or
    • Illness, injury, or quarantine;
  • Requires employees to apply for and receive EI benefits in order to receive payments under the plan;
  • Requires that the combined weekly payments from the plan and the portion of the EI weekly benefit rate does not exceed 95% of the employee’s normal weekly earning;
  • Is entirely financed by the employer;
  • Requires that on termination of the plan, all remaining assets of the plan will be reverted to the employer or be used for payments under the plan or for its administrative costs;
  • Requires that written notice of any change to the plan be given to Service Canada within 30 days after the effective date of the change;
  • Provides that the employees have no vested right to payments under the plan except during a period of unemployment specified in the plan; and
  • Provides that payments in respect of guaranteed annual remuneration, deferred remuneration, or severance pay will not be reduced or increased by payments received under the plan.

In addition to aligning your plan to the above conditions, you need to register the plan. Visit the government site to complete the registration form: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html

 

Can our employee apply for Employment Insurance if they take voluntary unpaid leave? We do not want to lay off employees but need to ask for their contributions.

If employees are offering to take a voluntary unpaid leave, this may be considered Code N, leave of absence, on the Record of Employment. Keep in mind that this may not provide the employee with any income from Employment Insurance (EI) through the Canada Emergency Response Benefit (CERB).

The CERB covers Canadians who have lost their job, are sick, are quarantined, or are taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures. The CERB applies to wage earners, as well as contract workers and self-employed individuals who would not otherwise be eligible for EI.

Additionally, workers who are still employed but are not receiving income because of disruptions to their work situation due to COVID-19 also qualify for the CERB. This helps businesses keep their employees as they navigate these difficult times, while ensuring they preserve the ability to quickly resume operations as soon as possible.

To support your employees, we recommend placing those volunteering for a leave on a temporary layoff. The temporary layoff enables the employee to file for benefits and receive payment either through employment insurance or the CERB benefit.

 

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: All About Working From Home, Work Sharing, and Those Feeling Left Behind

 

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