Can you be fired during Ontario’s latest stay-at-home order?

On Friday, April 16, the Ontario government extended a stay-at-home order for all residents and expanded restrictions in an effort to prevent a surge in COVID-19 cases and to relieve pressure on the province’s healthcare system.

My employment law firm has fielded hundreds of queries from the public since news of this latest restrictions first broke. The following are some of the most common questions we have received from employees and employers about Ontario’s stay-at-home order.

1. Can an employee choose to work from home? 

No, an employee cannot make the decision to work from home. The employer ultimately has the right to decide where you work, subject to provincial regulations. The province has not specifically outlined what kind of work is considered essential for all businesses — that determination is left up to the employer. It is at an employer’s discretion to request that the employee return to the workplace if they deem that employee’s work to be essential to the business and it is not prohibited by the province.

During the stay-at-home order, however, employees who are not required to be physically present at their place of work should try to work from home. If your work does not require you to be present, but your employer insists that you go in to the workplace, you can contact the Ministry of Labour to make a complaint. 

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If you request an accommodation due to disability, and that disability requires you to work from home, your employer must make every effort to comply with the request.

READ MORE: Employment rights during second wave of pandemic 

2. Does my employer have to pay me if I can’t work during the stay-at-home order? 

If your workplace is shut down due to the COVID-19 restrictions, and you cannot perform your duties remotely, your employer does not have to pay you. A company is not legally required to provide paid leave to their employees under these circumstances.

3. Can my employer make changes to my job during the stay-at-home order? 

Your employer can make temporary changes if they are a direct result of any requirements of the stay-at-home order. For example, your employer can make you work from home as a result of the order. If the employer needs to alter the way you carry out your duties to accommodate your working from home, that is allowed.

It is illegal for an employer to alter an employee’s hours of work, pay or duties, including putting them on a layoff, outside of the stay-at-home order. In that case, an employee can likely treat their job as having been terminated through a constructive dismissal and contact our employment law team to pursue full severance pay.

READ MORE: What to do if your employer makes changes to your job 

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4. Can my employer fire me while the stay-at-home order is in place? 

Whether you are deemed an essential or non-essential worker, your employer can fire you during the stay-at-home order, or at any other time, as long as they provide the proper amount of severance pay.

Severance is more than one week’s pay per year of service and can be as much as 24 months of wages. If you are let go during this order, use the Severance Pay Calculator to get an idea of what you may be owed.

READ MORE: Calculating a severance package in Ontario 

5. Can I refuse to return to the workplace after the stay-at-home order ends if I don’t feel safe? 

Employees who are simply worried about returning to the workplace cannot refuse to go back. Your employer, however, is obligated to follow all public health guidelines and regulations to create a safe work environment.

If you feel that your employer is not taking the proper safety precautions, you do have the right to refuse to return to work. Ask your employer to review their protocol if your place of work has had a COVID-19 outbreak or if you are concerned about a possible outbreak. You can also make a complaint to the Ministry of Labour and request an investigation into the safety measures that are being taken (or ignored) at work.

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If you make a complaint, and your employer takes action to fire you because of your request, contact Samfiru Tumarkin LLP and let us help you address the issue and make sure your workplace rights are protected.

Have you been let go from your job during the stay-at-home order? Are you trying to properly calculate the amount of severance pay owed to you?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta and British Columbia. Get the advice you need — and the compensation you deserve — from the most positively reviewed employment law firm in the country.

Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of the nation’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.

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