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Written by Stéphane R. Warnock

COVID-19 and what it means for Lay-Offs, Terminations and Refusals to Work

a. Lay-Offs

What is a Lay-Off:

A Lay-Off is a temporary break in employment, where after a period of time it is expected that the Employee will likely return to work. Due to the constantly changing circumstances and the uncertainty that lies ahead, it has become impossible to predict the duration of that period.

What the Law was:

It is the Province that regulates all non-federally regulated employment taking place within Manitoba. Under normal circumstances the Employment Standards Code, and the Employment Standards Regulations set out the interval of time that must elapse before a Lay-Off is deemed to be a Termination.

Generally, and unless the Employer notified the Employee upon hiring or continued to pay wages or certain benefits after the Lay-Off, a Lay-Off will be deemed to be a Termination Without Notice if the Employee is unemployed for a span of 8 weeks within a 16 week period (subject to exceptions specified by the director). That’s important, because as soon as the Lay-Off has been deemed to be Termination, then other statutory rights are triggered, including the Employee’s right to be paid in lieu of the Employer failing to provide notice. The Termination Without Notice will be deemed to have taken place on the first day that the Employee was laid-off.

What the Law is now:

When the Province of Manitoba declared a State of Emergency, they also announced that the statutory 8 week Lay-Off period will not run while we remain in this current State of Emergency. Employees who receive, or who have received, notice of a temporary Lay-Off, after March 1, 2020, will have their right to be paid in lieu of notice temporarily suspended until after the State of Emergency is over, upon which time the 8 week notice period would then begin to run.

If an Employee has been laid off, they will want to ensure that their Employer has issued a Record of Employment. This will be needed when applying for Employment Insurance benefits.

While no Employer ever wants to issue temporary lay-offs, given the current circumstances temporary lay-offs may be used to help create business stability in these otherwise unstable times. Once all of the uncertainty and this economic downturn has passed, Employer’s would then be able to recall an experienced workforce and ideally pick up where they left off. It is recommended that Employer’s who are considering this course of action first consult with a lawyer to discuss their specific circumstances.

b. Termination

While the right to terminate Employees does continue to exist, the impact of COVID-19 could have an affect on a number of employment standards rights, including but not limited to notice periods and payment in lieu of notice. It may be possible to assert that the notice period should be extended given the current economic situation, availability of similar work, and possible contractual obligations. Further, there are a number of government benefits available for Employer’s who are considering this option. Every scenario is different, and it is advisable to consult with an employment lawyer before taking these steps, to determine whether termination is the best option in light of the Employer’s specific situation.

c. The Right to Refuse Unsafe Work

According to the Workplace Safety and Health Act, workers have a right to refuse work if they reasonably believe that the work would constitutes a danger to their safety or health, or that it might reasonably constitute a danger to the health or safety of another person should they perform the task.

In order for something to be considered a “danger” to health and safety, all of the following conditions would need to be satisfied:

  • the hazard is generally unusual to the normal working conditions or tasks, or the health or physical condition of the worker increases the risk;
  • the hazard is likely to result in a serious injury or illness; and
  • reasonable controls have not been put in place to reduce or eliminate the risk.

Under normal circumstances, the Employee would submit a report to their supervisor detailing why they believe the work to be unsafe. Note that, the Employee would not need to prove that they are actually at risk to begin the work refusal process. If after reviewing the report, the Employer and the Employee cannot agree on a resolution, the Manitoba Workplace Safety and Health (“WSH”) can be contacted to determine whether the tasks can continue. The WSH can be contacted toll free 24 hours a day at 1-855-957-7233.

What obligations do Employer’s have?

First, the Employer will be obligated to continue paying the Employee during the refusal period unless the WSH grants an exemption to the Employer. If the WSH determines that the work is no longer unsafe and can be performed, or if alternate work is made available, the Employer would not be obligated to pay the Employee if the Employee continued to refuse to work.

The Employer also has a general duty to take reasonable precautions to provide a safe work environment. While the current pandemic persists, Employers should take active steps to protect Employees and customers. Employers should understand how the virus spreads, and take preventative measures to reduce the spread, while following the guidelines and special measures outlined by the Chief Provincial Public Health Officer in response to COVID-19.

Although not technically an obligation, in each of the above cases, best practice would be for the Employer to proceed cautiously. Employers should take proactive steps and reasonable precautions to ensure the health and safety of others. It is also important that Employer’s communicate openly with their Employees and keep them apprised of the situation as it changes. Remember, these are uncertain times for everyone, respectful and transparent communication in the workplace can help to alleviate some of the Employee’s anxiety and concerns.

For more information or to learn more about the latest on COVID-19 and how it may impact you and your business please contact Stéphane Warnock or any other member of our team. We would be happy to help you navigate these challenges and assist you with any specific concerns you may have during these unprecedented and constantly evolving times.