Written on behalf of Peter McSherry
The latest and biggest news from the province is the announcement that public schools will remain closed through to the end of the school year. Daycare services are also closed and will remain so until the period of emergency is lifted.
The present date for this emergency and the shutdown based on the emergency declaration is June 2. This is likely to be extended either for at least an additional 14 days. The Premier can make the decision to extend it for 14 days on his own but can go as long as an additional 28 days with the approval of the legislature. Presumably, the government will closely monitor the statistics around the number of new COVID-19 cases, especially as restrictions are eased, before making this determination.
These two events are significant for employment issues. Even if the economy were to be open tomorrow, which is obviously not the case, many workers must still stay home due to a lack of childcare options.
When the province amended the Employment Standards Act to provide for worker job security, it prevented employers from terminating any person due to childcare needs during the period of the emergency owing to COVID-19. These needs must be accommodated in some way, with employees and employers working together to find a suitable arrangement.
Bigger and Better Remedies
This is a very powerful remedy. It is bigger and better than a civil wrongful dismissal claim which has a built in cap on recovery based on the usual factors such as age, employment history and such.
Take, for example, the case of a junior, newly-hired employee. If they were terminated without sufficient notice in normal circumstances, they would likely recover perhaps one to three months, on the high side, in a wrongful dismissal case.
In the present situation, if the employee was terminated due to an inability to work in the physical workplace because he or she had children at home, there is no inherent cap on the claim. The case is based on lost earnings from the termination date, or the refusal to hire date, to the date of the hearing, which could easily be 12 months or more. There could also a claim for possible reinstatement. The same employee would have a much more powerful case.
Note the reference to “refusal to hire”. If the employer had previously laid off a number of employees and then hired back all staff without child care needs while avoiding those with such requirements, a claim could be made in this regard as well.
The time period in which children are not able to attend a school or a public daycare is defined by the period of emergency the province is under. The emergency period remains very important, as it is connected to the job protections allowed by the amended Employment Standards Act.
This protection may or may not apply to the usual period of summer holidays, which could become a concern as the province has announced that overnight camps will not be permitted to operate this summer. Stay tuned to this page for further updates.
Emergency Child Care
As an aside, if you are employed in an essential industry which is seen as critical to serving the public in this time of crisis, such as a health care worker, firefighter or grocery store worker, then there are special permissions for emergency access to child care available.
All this is important as the province moves ahead slowly, yet carefully, to re-start the economic engines. The Premier has announced three stages of the opening. We are in the first wave now, as mentioned in our prior post. To date, we have only received a conceptual idea of what the second and third stages might look like, all of which will be dependent on the infection rates and any potential further outbreaks. The second curtain to be lifted will be for service industries and office workers and retail employees. The third and last segment will be the rest of the businesses in the province.
Just because a business is open does not end the need for constant vigilance to ensure a safe workplace. The province has set various guidelines for employers in different industrial sectors. The need for workplace safety will be constant.
“We live in unusual times” is an understatement. Both levels of government continue to make legislative changes as the situation evolves. This is the precise moment to have access to up-to-date legal advice on issues that have a direct impact on your employment. We will stand by you as this saga continues. We will monitor and update the all news as it develops in this space.
If you have questions or concerns about your employment as the pandemic situation changes, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.