This guide has been prepared to answer common questions regarding the COVID pandemic and its impact on provincially regulated, non-unionized workplaces in Ontario. The questions and answers are for information only, may not relate to your workplace situation, and do not constitute legal advice.
This guide was last updated on December 27, 2021.
If you require legal advice about your particular situation, you should speak with an employment lawyer. Advocation is an employment law firm that helps employees and employees resolve problems in the workplace such as employment law matters related to the COVID pandeic. We would be happy to assist you – please contact us at firstname.lastname@example.org or at +1-647-727-8836.
For purposes of this COVID FAQ, the workplace is defined as the physical location (e.g., an office, restaurant, retail store etc.) where work typically takes place.
A Worker is a person who performs work at the direction of an Employer. The term Worker includes employees, dependant, and independent contractors, as well as interns and volunteers. The term Worker also applies regardless of whether the person performs the work on a full-time, part-time or casual basis.
An Employer is the entity that directs the workplace and the work that gets done. The term Employer includes sole-proprietors, partnerships, corporations, and not-for-profit organizations.
Is a temporary dismissal of a Worker from performing work. During a lay-off, a Worker has been temporarily relieved from active service to their Employer, but it is the intention of the Employer to recall the Worker at some point in the future.
Is the permanent dismissal of a Worker from performing work. During a dismissal, a Worker has been permanently relieved from active service to their Employer and it is NOT the intention of the Employer to recall the Worker at some point in the future.
this is discrimination or harassment of a Worker or a job candidate (if the person has not yet been hired) based on one or more of the following areas:
Under Ontario’s Occupational Health and Safety Act (“OHSA”) an Employer has a legal obligation to take all reasonable precautions to protect the health and safety of Workers. This means that Employers must operate in compliance with the advice, recommendations, and instructions of public health officials (whether federal, provincial or municipal), including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting, and working remotely. More information about workplace COVID directives as they relate to OHSA can be found here.
Employers must also operate in compliance with the advice, recommendations instructions issued by the Office of the Chief Medical Officer of Health on screening any workers or essential visitors entering the workplace and providing workers with personal protective equipment and outfitting workplaces to limit the spread of COVID.
Lastly, Employers are required to comply with workplace directives made by the federal, provincial and municipal governments.
Information about Ontario’s plan to reopen business and fight against COVID can be found here.
Workers also have legal duties under Ontario’s Occupational Health and Safety Act (“OHSA”) to keep the workplace safe. As it pertains to COVID, this includes:
Yes, however the standard for work refusal is quite high. Under the Occupational Health and Safety Act (“OHSA”) workers generally have the right to refuse work if they have a genuine belief that the physical condition of the workplace is likely to endanger him/her/themself, or another worker.
That said, some workers are unable to refuse work under OHSA. These exempted workers include police officers, firefighters, ambulance service workers, workers employed in the operation of correctional institutions, as well as health care workers and persons employed in workplaces like hospitals, nursing homes, mental health centers, rehabilitation facilities, and residential group homes.
If a Worker has tested positive for COVID or is required to quarantine as directed by public health, a Worker can refuse to go to the workplace, even if they are being asked to by their Employer. Requiring such a Worker to come into the workplace would be unlawful and in breach of not only government directives, but also the Occupational Health and Safety Act (“OHSA”). That said, if a Worker can safely perform his/her work while in quarantine, a work refusal may not be permitted and the Worker may still be required to actively work.
In all other situations (e.g. a Worker who does not want to go to work for fear of catching COVID), a Worker can refuse work if they have a genuine belief that the physical condition of the workplace is likely to endanger the Worker and/or his/her co-workers. The OHSA specific procedures that must be followed for a work refusal can be found here.
Certain workers are unable to refuse unsafe work and are required to work even when it is unsafe to do so. These exempted workers under OHSA include police officers, firefighters, ambulance service workers, workers employed in the operation of correctional institutions, as well as health care workers and persons employed in workplaces like hospitals, nursing homes, mental health centres, rehabilitation facilities, and residential group homes.
Yes. In fact, as of September 25, 2020 and under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, an Employer is required to screen all Workers and visitors who enter the workplace. This screening should occur before or at the time the Worker enters the workplace at the beginning of their day or shift.
The screening should include at minimum the following questions:
The screening questionnaire can be found here.
A Worker should be prohibited from entering the workplace if they answer affirmatively to any of the questions.
It should be noted that an Employer may not request the disclosure of health diagnosis information from a Worker (i.e., information about the nature of a Worker’s illness). However, the Employer can obtain information about the prognosis and limitations a Worker may have, which would include symptomatic effects of COVID.
Yes. As previously mentioned, under Ontario’s Occupational Health and Safety Act an Employer has a legal obligation to take all reasonable precautions to protect the health and safety of Workers. And an Employer is required to screen all Workers who enter the workplace to determine whether they have new or worsening symptoms or signs associated with COVID. Therefore, if a Worker is sick (with COVID or another illness that could be contagious like a cold or the flu) an Employer may prohibit the Worker from coming to work until the Worker is fit to work.
Yes and No. Generally, an employer can require a Worker to provide a doctor’s note if the Worker has been away from work for more than 3-days and it is reasonable to request a note based on the circumstances of the Worker’s absence. The employer can request:
Employers cannot ask for information about the diagnosis or treatment for the Worker’s medical condition.
However, under Ontario’s Infectious Disease Emergency Leave (“IDEL”) Workers affected by COVID are not required to provide their Employers with a medical note or doctor’s certificate in order to take sick leave for reasons related to COVID.
Though this question was debated at the beginning of the COVID pandemic, the answer is pretty clear right now and a resounding ‘yes.’
Under the Occupational Health and Safety Act (“OHSA”), Employers are required to take every precaution reasonable in the circumstances for the protection of a Worker. Therefore, Employers can require Workers to wear any and all protective equipment that is reasonable and/or necessary to ensure safety in the workplace.
Further, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, Employers are required to adhere to provincial and municipal restrictions, which currently include requiring a Worker to wear a face-covering indoors, including when they come within 2 metres of another person (with some limited exceptions). Personal protective equipment (PPE) that protects the eyes, nose, and mouth, is also required if a Worker is required to come within 2 metres of another person who is not wearing a face covering and the Worker is not separated by plexiglass or some other impermeable barrier.
Under the Occupational Health and Safety Act in Ontario, employers are required to take all reasonable steps to ensure safety in any workplace. If an employer fails to take “all reasonable care” to ensure a safe workplace, the Employer may be subject to a fine of up to $100,000.00 under the Occupational Health and Safety Act.
Employers should also ensure that they are aware of and they comply with all public health guidance and the requirements made by Federal, Provincial, and Municipal governments with respect to COVID.
Legal liability if a Worker contracts COVID in the workplace would be limited by a number of statutes. The Workplace Safety and Insurance Act, a no-fault insurance system that covers most workplaces, would insulate an Employer from civil liability (i.e. a Worker’s personal injury lawsuit for COVID exposure and infection). Additionally, the Supporting Ontario’s Recovery Act, 2020 expressly prohibits personal injury lawsuits with respect to contracting COVID in the workplace after March 17, 2020, on the condition that the employer acted in good faith and was not grossly negligent.
Employers should carefully consider whether the confirmed or alleged case of COVID may be ‘workplace related’. If so, there may be reporting obligations under the Occupational Health and Safety Act, s52(2), or under the Workplace Safety Insurance Act. There may also be reporting obligations under a collective agreement, employee contract, or employer policy.
Employers should immediately take steps to minimize the risk of transmission and the physical and emotional impact of a confirmed or alleged case on other Workers. If personal information is collected from the confirmed or alleged individual, it should be appropriately safeguarded apart from the Worker’s regular employment file and access restricted only to individuals requiring the information. Employers should advise the affected individual to follow all directions given by their medical professionals and public health.
Additionally, employers should make reasonable efforts to determine who may have had contact with the confirmed or alleged individual in the previous 14 days and advise any affected individuals personally, while maintaining the privacy of the confirmed or alleged case. The Employer may want to implement a safety plan, that includes additional measures to maintain social distancing, to contact Workers, and if necessary, to close the workplace to conduct a deep cleaning.
The facts regarding the confirmed or alleged case, as well as the nature of the workplace and workplace parties, should be factored in when determining the appropriate response (i.e. which range from simple precautions to full closure of the workplace).
No. Under Ontario’s Occupational Health and Safety Act (“OHSA”), an employer has the legal obligation to take all necessary and reasonable steps to ensure that the workplace is safe. Where an Employer fails to meet this obligation, they will be in breach of OHSA and subject to its penalties and convictions.
An Employer cannot ‘contract-out’ of statutory laws, including OHSA, through a written agreement such as a liability waiver. Therefore, an Employer cannot use a waiver of liability to successfully argue that they are not at fault if the Employer failed to take all necessary and reasonable steps to keep the workplace safe.
There is no clear answer to this question and any answer would be based on the factual situation within a workplace and the reasonability of the Employer’s request. Remember that under the Occupational Health and Safety Act (“OHSA”), Employers have a legal duty to provide a safe workplace. However, as it pertains to workplace medical testing (all medical testing whether alcohol, drug or COVID testing), Workers have a right to privacy of their health information. This means that an employer cannot:
Canadian employment laws generally balance a Worker’s right to privacy with an Employer’s reasonable need for the information. For example, a Worker who works directly with individuals vulnerable to COVID (e.g., seniors, people who are immune-compromised etc.) may be required to get a COVID test to demonstrate that they do not have the virus. In contrast, requiring a Worker who is a customer service agent and working from home to obtain a COVID test would be unreasonable as there is no apparent health and safety rationale for the test.
Under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, an Employer is required to screen all Workers who enter the workplace for any symptoms of COVID or contact with people who have the virus. And to curtail the spread of COVID, non-invasive temperature checks by Employers of people who enter the workplace (including Workers) have been generally permitted.
The reasonableness of requiring COVID testing is not a clearly defined line and requires balancing of many factors including a Worker’s right to privacy and dignity. Some factors to determine the reasonableness of requiring a COVID test include:
Generally, if the goal of safety in the workplace can be achieved by less intrusive methods, then testing may be found to be too intrusive. To provide some perspective it is more likely that testing in hospitals and long-term care homes would be reasonable and less likely reasonable in an office setting where people have minimal contact.
Although getting a vaccine is an individual choice, an Employer can implement health and safety policies that are reasonable to protect Workers and others in the workplace, including implementing a mandatory vaccine policy (which may result in a Worker getting a vaccine). However, like the ability to require COVID testing, the law is not settled on the extent of what (or how far) an Employer can go.
There are some legal precedents for the requirement of a vaccine, with exceptions only for religious or medical reasons – not personal preferences (i.e. Immunization of School Pupils Act.), which approach is consistent with human rights laws.
Generally, an Employer may require proof of a Worker’s vaccine status, as part of a workplace vaccine policy, if the purpose of the Employer’s vaccine policy is in good faith and is reasonably necessary to safeguard health and safety in the workplace. That said, the specific fact scenarios in the workplace will have to be balanced, weighing the Employer’s health and safety obligations with the Worker’s right to privacy and choice.
Yes, but in limited situations.
Any workplace vaccine policy would need to comply and would be secondary to, Federal and Provincial human rights laws. As a result, the exemption from a workplace vaccine policy would have to be based on protected grounds under Human Rights legislation. Human Rights protected grounds include:
As it pertains to mandatory vaccine policies, a Worker would be able to obtain an exemption from the policy based on religious (creed) or medical (disability) reasons: personal preference or medical beliefs would not be considered a protected ground. More information can be found at the Ontario Human Rights Commission website here.
Very few religions expressly prohibit vaccinations.
But that said, under the Ontario Human Rights Code, employers are prohibited from discriminating or harassing a Worker on the basis of ‘creed’, which is broadly defined. A person’s creed does not have to be part of major religion and needs only be a sincerely held religious belief for the person. Furthermore, a person does not have to show that their belief is an essential or obligatory element of their creed, or that it is recognized by others of the same creed (including religious officials).
Notwithstanding all of this, in September 2021, the Ontario Human Rights Commission released a policy statement about Creed and vaccine policies and said:
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.
Based on this, it is unlikely that a Worker seeking a religious exemption to a workplace health and safety vaccine or testing policy will be successful in obtaining accommodation from complying with the policy.
If travel is an essential part of the Worker’s position, then the Employer could require a Worker to travel.
But in light of COVID infection and vaccination rates in different regions nationally and internationally, requiring travel without careful consideration may put an employer at risk.
Employers have a legal duty to ensure a safe workplace, and Workers have the right to refuse unsafe work (including travel). Travel advisories issued by the federal government have warned against travel, particularly international and non-essential travel. Employers should carefully consider if the travel is essential to a Worker’s role and whether the purpose of the travel can be achieved another way (for example, by virtual meeting). The Employer must be prepared to defend its decision if it does require a Worker to travel.
No, an employer cannot restrict a Worker’s personal travel. That said, Employers have a legal obligation to ensure a safe workplace for all Workers, which may give Employers more latitude to ask questions about personal travel (e.g. determining whether a Worker is traveling to an area designated as high-risk) and to act accordingly based on the circumstances.
No. The goal of the government benefits is to assist Canadian Workers impacted by COVID. If a Worker is in quarantine after traveling, they are ineligible for any of the government assistance currently offered due to COVID.
Yes. Under the Occupational Health and Safety Act, employers have the legal obligation to take all reasonable steps to ensure the health and safety of Workers, and Workers have the legal obligation to report the existence of a threat of actual or potential COVID exposure. Therefore, an Employer can lawfully request that a Worker provide information about their travels to the extent that it directly relates to health and safety. This includes reporting if a Worker has traveled internationally or to an area assessed as high-risk by the federal government or World Health Organization.
An employer has a legal duty to ensure a safe workplace for all Workers. But this duty should consider the privacy rights of Workers and in the case of return from travel, should be exercised carefully. The Employer can ask:
Workers arriving from international travel may have already been mandated by the government to quarantine. For safety, and depending on the circumstances, an employer may wish to consider having Workers quarantine or work from home before returning to the workplace after traveling to a high-risk COVID hotspot area.
A Worker with children, who is impacted by the closure of schools and daycares, is eligible to take an unpaid, job-protected Infectious Disease Emergency Leave (“IDEL”) from work. They may be eligible for government benefits and assistance to compensate them for any lost pay during this time.
Yes. A Worker is eligible to take an Infectious Disease Emergency Leave (“IDEL”) from work if they meet certain criteria, including providing care or support for a designated individual (children, spouse, and parent) due to a COVID related matter. This includes care for children or parents whose regular places of care are closed due to COVID.
The IDEL leave can also be taken if the regular places of care are open, but the Worker has concerns about contracting COVID if their children or parents attend.
The Ontario Government amended the Employment Standards Act (ESA) to require employers to provide employees with up to 3-days of paid infectious disease emergency leave for certain reasons related to COVID (discussed below). This entitlement remains in effect while emergency measures due to COVID are in place. As well, the 3-days of paid sick leave are in addition to a Worker’s right to unpaid infectious disease emergency leave.
For the sick leave, Employers are generally required to pay employees the wages they would have earned had they not taken the leave, up to $200 a day for up to three days. Employers may be eligible for reimbursement of up to $200 per employee per day if the Worker (who receives the sick-pay) is governed by the Employment Standards Act (ESA).
The paid leave is for reasons related to COVID, including:
While emergency measures due to COVID are in place, Workers without paid sick benefits provided by their Employer may take up to 3 paid days off due to COVID-related issues. Additionally, Workers may also be eligible for Employment Insurance sick benefits for up to 4-weeks.
Yes, a Worker can request to work from home, however, the Employer is not obligated to provide a work from home arrangement. Provided that the Employer is taking reasonable steps to ensure the workplace is safe for Workers, the Employer can require Workers to attend at the workplace.
That said, Employers should always consider any human rights considerations when considering such requests. If a Worker’s request to work from home is based on a reason protected under Ontario’s Human Rights Code, then the Employer may be required to consider and accept the work-from-home arrangement as a workplace accommodation for the Worker.
Yes. Though changes in terms and conditions of employment would normally trigger a constructive dismissal claim, where the change is a return to a pre-COVID work arrangement, it is unlikely that a court would consider such a change constructive dismissal. Given the uncertain and emergency nature of the COVID pandemic, as well as the unprecedented government directives to Employers to close workplaces, courts are likely to treat work from home arrangements during COVID as only temporary changes to the employment relationship.
Workers may request flexible work arrangements however, it remains the Employer’s decision to provide these work arrangements, unless an existing employment contract between the Employer and Worker or collective agreement says otherwise.
Workers whose request for a flexible work arrangement is based on a protected ground under the Ontario Human Rights Code may have more leverage in requesting alternative arrangements based on an Employer’s legal duty to accommodate. However, finding appropriate accommodation is always a collaborative effort between the Employer and the Worker and a Worker cannot refuse a reasonable work arrangement accommodation, simply because it is not the flexible work arrangement that the Worker wants.
An Employer should consider all of the following when considering a Worker’s request for alternative work arrangements.
If a Worker is permanently terminated, the requirement of notice either under the Employment Standards Act (“ESA”) or the common law would be triggered. Similarly, if the Worker’s hours are permanently reduced, this may trigger a Constructive Dismissal claim.
Where there is a Constructive Dismissal, the Worker may be entitled to severance.
The Ontario government made changes to the Employment Standards Act (“ESA”) in response to the COVID pandemic: these changes apply to a reduction of hours or a lay-off between March 1, 2020, until July 31, 2022. When a Worker’s hours are reduced or eliminated in whole or in part due to COVID, the Worker is deemed to be on an Infectious Disease Emergency Leave and the ESA provisions regarding constructive dismissal and temporary layoffs are not in effect.
That said, some Workers have successfully claimed that they were constructively dismissed because of their Employer’s reduction of their hours and/or a temporary lay-off due to the COVID pandemic. So there still remains a risk that Employers who do not have a lay-off provision in their contracts with Workers might be faced with a constructive dismissal claim.
Whether a temporary lay-off or a dismissal amounts to constructive dismissal will be decided on the facts of the situation. Therefore, it is always best to seek advice from an employment lawyer to manage the risk.
No. If a Worker has contracted COVID and is sick, there may be a breach of human rights laws if the Employer terminates the Worker’s employment.
Further, even if the Worker does not actually have COVID, but the reason for the leave meets the criteria set out in the Employment Standards Act’s infectious disease leave directives, the Worker is deemed to be on a job-protected Infectious Disease Emergency Leave. Further, once the Worker is cleared to return to work, the Employer must re-instate the Worker to their pre-leave position, provided that the position continues to exists.
A Constructive Dismissal is a claim by a Worker that their Employer has significantly and unilaterally changed the terms and conditions of employment indicating that the employer no longer intends to be bound by the existing employment contract. By alleging constructive dismissal, the Worker is claiming that their employment has been terminated and those notice requirements under the Employment Standards Act (the “ESA”) or the common law are triggered. Significant changes to a Worker’s hours of work or not enabling a Worker to earn a living (as in a lay-off) could constitute a constructive dismissal.
Currently, temporary changes to the ESA under the Infectious Disease Emergency Leave have provided Employers with latitude with respect to changes to the terms and conditions of employment due to the effects of COVID restrictions and lockdowns.
That said, some Workers have successfully claimed that they were constructively dismissed because of their Employer’s reduction of their hours and/or a temporary lay-off due to the COVID pandemic. Therefore, whether a temporary lay-off or a dismissal amounts to constructive dismissal will be decided based on the facts of the situation.
Under the Employment Standards Act (the “ESA”), a temporary layoff can last up to 13 weeks in any period of 20 consecutive weeks. If the layoff exceeds this time, then the layoff becomes a permanent dismissal and the Worker’s employment is considered to be terminated triggering notice requirements under the ESA or the common law.
As it pertains to the COVID pandemic, the Ontario government enacted Infectious Disease Emergency Leave (“IDEL”), which amended the ESA. Under the IDEL Regulation, a non-unionized Worker whose wages or hours are reduced or eliminated due to COVID is not considered laid off or constructively dismissed under the ESA. Instead, such Workers are deemed to be on job-protected leave. An IDEL layoff can last longer than 13-weeks and can continue as long as the COVID emergency measures are in effect, which is currently until July 31, 2022.
When the Infectious Disease Emergency Leave (“IDEL”) provisions end (currently July 31, 2022), Employers should recall Workers who are on an IDEL layoff and/or should restore the hours of Workers who have had their hours reduced because of COVID.
On an ongoing basis, Employers should consider addressing closures, temporary and permanent layoffs in their employment agreements with Workers. In exceptional circumstances, an Employer may consider applying to the Employment Standards Branch for an extension to the limits provided for in the ESA. Additionally, Employers should consider having clear and equivocal clauses to enable a layoff and/or limit the notice period in the case of permanent termination of employment.
The Infectious Disease Emergency Leave (“IDEL”) is a regulation that amends the Employment Standards Act (“ESA”) as part of government measures to help Employers and Workers as part of the COVID pandemic. Under the IDEL Regulation, a non-unionized Worker whose wages or hours are reduced or eliminated due to COVID is not considered laid off or constructively dismissed under the ESA. Instead, such Workers are deemed to be on job-protected leave.
Unlike the typical lay-off provisions under the ESA, an IDEL layoff can last longer than the ESA 13-week layoff and can continue as long as the COVID emergency measures are in effect, which is currently until July 31, 2022.
The Infectious Disease Emergency Leave (“IDEL”) is a regulation that amends the Employment Standards Act (“ESA”) as part of government measures to help Employers and Workers as part of the COVID pandemic.
Under IDEL, Workers are entitled to unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to COVID. This leave is available to all Workers who are covered by the Employment Standards Act. To be eligible for IDEL, the Worker must be:
There are a number of supports available for Workers at all levels of government (municipal, provincial, and federal) as well as by private organizations that provide goods and services. You should research and determine which financial supports apply to you: we have discussed a few main programs below.
The Federal government has made the following financial supports available to Workers who cannot work, have lost their employment, or need to quarantine because of COVID.
Employment Insurance (EI)
As a result of the pandemic, the Federal government has made temporary changes to the Employment Insurance programs. Some of the most notable changes include:
Canada Worker Lockdown Benefit
The Canada Worker Lockdown Benefit provides $300 a week to eligible Workers who are unable to work due to a temporary local lockdown anytime between October 24, 2021 and May 7, 2022.
The benefit is only available when a COVID-19 lockdown order is designated the Worker’s region.
Canada Recovery Sick Benefit (CRSB)
The Canada Recovery Sickness Benefit provides $500 ($450 after taxes withheld) per week for up to a maximum of six weeks, for Workers who:
The Canada Recovery Sick Benefit is available until May 7, 2022.
Canada Recovery Caregiver Benefit (CRCB)
The Canada Recovery Caregiving Benefit provides $500 ($450 after taxes withheld) for up to 44 weeks per household for Workers, who:
This benefit is available until May 7, 2022.
Though many of the COVID financial support programs for Employers have closed (such as the Canada Emergency Rent Subsidy, Canada Emergency Wage Subsidy, and the Canada Emergency Business Account), there are still programs available to Employers based on industry and size.
Highly Affected Sectors Credit Availability Program (HASCAP)
The Highly Affected Sectors Credit Availability Program provides businesses heavily impacted by COVID-19, access guaranteed, low-interest loans of $25,000 to $1 million to cover operational cash flow needs.
HASCAP is available to businesses that operate in sectors such as tourism and hospitality, restaurants and those that primarily rely on in-person services.
Business owners can apply for support until March 31, 2022
Large Employer Emergency Financing Facility (LEEFF)
The Large Employer Emergency Financing Facility (LEEFF) provides bridge financing to Canada’s largest employers, whose needs during the pandemic are not being met through conventional financing, in order to keep their operations going.
The additional liquidity provided through LEEFF allows Canada’s largest businesses, their workers and their suppliers to remain active during this difficult time, and position them for a rapid economic recovery.
This program is delivered by the Canada Development Investment Corporation, in cooperation with Innovation, Science and Economic Development Canada and the Department of Finance.