COVID-19 layoffs, government benefits pose novel questions for employment lawyers

Payroll reduction and health and safety obligations pose major challenges

COVID-19 layoffs, government benefits pose novel questions for employment lawyers
Rebecca Wise is a senior associate at Torys LLP.

Employment lawyers are facing round-the-clock questions — including some that the government has yet to provide guidance on — on new government programs to mitigate the effects of COVID-19. 

“It's a really uncertain time for both employees and employers — and as legal counsel,” says Rebecca Wise, a senior associate at Torys LLP. “We’re trying to give practical advice that's grounded in the legal obligations that exist. But . . . . this is a bit of an unprecedented situation. And how our laws are going to adapt to accommodate some of the issues that employers are facing right now is a real question mark. This whole thing poses a number of really challenging issues from our clients perspective and from our perspective as well.”

Wise will be speaking on a Mar. 31 Canadian Lawyer webinar panel, “Servicing Clients' Employment Law Needs in a COVID-19 Landscape.” Two of the biggest COVID-19-related themes in Wise’s practice right now are payroll reduction and health and safety obligations. 

“What's legally permissible? What, practically, do they need to be doing? How do they ensure that their employees are taken care of, as best they can?” she says. “There's no work available for a lot of workers. In Ontario, for example, the recent order shutting down non-essential businesses means that for a lot of businesses, there's actually no work to give to their employees. In other provinces where those orders haven't yet been issued, the reality is that contracts are getting cancelled, and business has slowed.” 

Non-essential businesses may be wondering what they should do to ensure that workers, who are not being paid for their work for a period of time, will be able to access benefits. For essential businesses, clients may be asking how to comply with their health and safety obligations while ensuring work gets done. 

“A lot of the issues that we're seeing come up are time sensitive,” she says. “Just being available and willing to sort of give advice on an ad hoc, quick basis is probably the most important thing for a lot of our clients right now.” 

The seemingly ever-changing situation created by COVID-19 means that the best thing lawyers can do for their clients is to be available when new issues arise, says Wise. There are still areas of uncertainty where new protocols could emerge. 

For example, she says, the U.S. Equal Employment Opportunity Commission has laid out guidelines for if it is permissible to take an employee’s temperature at work to check for fevers — but as of Mar. 26, Canadian authorities had not weighed in.  

Lawyers need to not just know the existing laws across the country but also be at the forefront of legal developments, government programs and how they are being implemented, she says

“They're changing on a day-to-day basis,” she says. “I think lawyers need to be …. making sure that we're reading everything that comes out. And analyzing it, as it does come out, I think is a huge value add.”

Another question employment lawyers must stay on top of is around whether the Employment Standards Act’s technical right of layoff is a free-standing right, in the absence of a contractual provision in the agreement, she says. 

“Whether a layoff is going to be something that amounts to constructive dismissal in a circumstance like this, I think, is something that employers would love some guidance on, although hasn't come out yet,” she says. 

“I think there's a lot that — from an employment law perspective — we just don't know how it's all going to play out,” she says. “There hasn't been a huge amount of guidance from the various regulators around some of these issues.”

Wise will be joined in the webinar by Stikeman Elliott LLP partner Patrick Essiminy, WeirFoulds LLP partner Daniel Wong, and Mathews Dinsdale & Clark LLP partner Deanah Shelly. For more information or to register, visit https://www.canadianlawyermag.com/events.

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