Employment Law Considerations
If you are a worker at an essential workplace and are continuing work, your employer has a duty under the Occupational Health and Safety Act to ensure proper hygiene is in place and that employees are given breaks and time to sanitize their hands and practice physical distancing.
For those businesses that have to shut on a temporary basis, either because they are being ordered shut by the government or due to a decline in business that cannot support a complement of staff, a lot of company’s are conducting temporary lay offs
Temporary lay offs are permitted under the Employment Standards Act. A temporary layoff is one that lasts no longer than 13 weeks in a period of 20 consecutive weeks (it does not have to be 13 consecutive weeks). The exception is that where benefits are continued or substantial payments are made to the employee, the temporary layoff periods can be extended to 35 weeks in a 52-week period. These provisions are written into the Employment Standards Act.
If you do not have a written employment contract that allows the employer to put an employee on temporary lay off, under normal circumstances, the employee can argue under the common law that they have been constructively dismissed from their employment. Right now, we are not under normal circumstances. The common law is fluid and adapts with societal changes.
There may be a flood of wrongful dismissal cases related to temporary lay-offs due to COVID-19. There is an alternate argument arising out of contract law referred to as frustration of contract, which refers to an intervening event which neither party anticipated at the time the contract was entered into, the contract is treated as null and void. Some employers may argue that they have not terminated their employees but rather there has been a frustration of contract.