The End of CERB & Other COVID Updates

Written on behalf of Peter McSherry

Below, we provide an overview of important employment-related updates across Canada and in Ontario.

CERB Ending in September

The Canada Emergency Response Benefit (CERB) program is set to terminate as of the end of September. The Prime Minister has announced that persons in receipt of CERB will, however, be migrated to a new EI system in September. Full details have yet to be formalized but these particulars have been forthcoming to date:

1. CERB pays a flat amount of $500 per week, whereas EI is based on a sliding scale based on insurable earnings. The eligible EI sum is 55% of maximum insurable earnings which allows for a maximum EI payment of $573 per week.
2. For this reason, many people will suffer a decrease in the sum received while higher income earners will be eligible for a slightly higher amount.
3. There will be eligible coverage for people if they contract COVID-19 or have a family member who is ill and requires home care.
4. Many people receiving CERB do not fit into the usual EI qualification guidelines as they have not paid premiums. For example, those who were independent contractors or had other “non-employee” relationships with their “employer”. It has been announced that there will be a transitional parallel benefit that works in a manner similar to EI for those who fit this description.
5. The “new” EI system will allow for a worker’s ability to work additional hours without a severe clawback of eligible payments.

Additional details are expected momentarily. The government is under tight time constraints, as the present program is set to expire as of the end of September. There is much to be done in the interim. Stay tuned for further details as they are released.

Return to Work Issues

Many workers who have been laid off will be concerned with their employer’s decision about which employees will be recalled, particularly if they are not asked to return to active employment.

A company does have the general right to determine who is recalled. It may well be the case that there is simply not enough work to justify the hiring of the entire workforce following a closing or substantial lay-off. There is nothing illegal about such a decision, absent unusual factors.

An employer should not base the decision of whom to recall on human rights factors such as childcare needs or a prior medical disability such as a coronavirus infection. If there is such an apparent pattern in the hiring practices, this may well give rise to a human rights complaint.

For example, if all persons recalled to work had no school-age children, or if all persons not hired back had previously suffered from the virus, then a human rights claim may well be considered.

There is a one year time period to file this complaint under the Human Rights Code and a two-year limitation on pursuing a civil lawsuit. However, the latter requires a second action such as a wrongful dismissal claim; you cannot bring a civil claim in court for a human rights complaint alone.

The Lay-off Issue

As mentioned in last week’s post, the time period for calculating a “temporary” lay-off period starts September 4. If an employee has not been called back to work by that date, the 13-week period will start on September 4 to assert a termination under the Employment Standards Act. This allows a claim for both statutory termination and severance pay sums. These sums are not reduced by other income received in the relevant time period, which often is a very important consideration as to whether to make the claim. Should the employer offer a return to work after the 13-week period has expired, it will have no impact on the claim.

It may be well be a good strategy to wait, rather than assert a claim immediately. It is possible that the employer will indeed offer a return to work within the 13-week period or even later. Active employment is a valued asset today and likely will be worth more than a human rights complaint or an Employment Standards Act complaint.

Get Informed, Stay Current

Legal advice is very important in today’s chaotic state of ever-changing employment law rules. To say today that the law is dynamic is a gross understatement. If you have concerns over returning to work, or whether you have a potential claim against your employer, contact the offices of Guelph employment lawyer Peter McSherry. We will review your situation, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.