Low-wage workers face tough choices during 'unprecedented' COVID-19 times
Employment lawyer on temporary layoffs, benefits and relief programs
We're all being told to stay home, but many of the jobs that can't be done from home, like grocery store clerks and delivery drivers, are the same ones that place those employees at a higher risk of contracting COVID-19.
Roberto Henriquez — a labour, employment and human rights lawyer — told The Homestretch his firm has been fielding calls from both employees and employers.
"We have individuals who are calling us who are wondering what the next steps might be if they're going to be terminated, if they're going to be laid off," he said. "On the other side, we have employer organizations who are looking to see what entitlements and obligations they owe or to their employees, and what they can do now that they're seeing a drop in revenue and it's really a stagnating economy."
Henriquez said employers are obligated to provide a safe and healthy work environment for employees. Generally, an employee can't just declare a workplace unsafe, and decide to stay home — but these are unusual times.
"As you can imagine, a lot of this is fluid," he said.
Rochelle Satimbre — a Calgary worker who was just recently laid off from her retail job — is worried because her fiance works at a construction site.
"My fiance is still working, and he just told me there's someone coughing and blowing their nose inside a site," she said. "He might bring the virus in the house, my kids and I are home."
Henriquez said realistically, there isn't a lot from the provinces to protect employees who are now losing a solid source of income.
"What that ends up meaning is that people are looking at the EI side of things," he said. "We've obviously heard a lot of discussion from the federal government in terms of what is being done on the EI sick benefits."
The federal government has said it will remove the one week waiting period for individuals who are unable to work for medical reasons and who are specifically quarantined as a result of COVID-19, as a means of getting money in people's hands quickly.
Many employers in Calgary, including the City of Calgary, have indicated that layoffs are temporary. Henriquez said there can still be grey areas.
"The courts have commonly said that unless an employer and an employee agreed to allow the employer to invoke those layoff provisions at the outset of the employment relationship … a layoff could be viewed as a constructive dismissal. And it often will be, which in other words is a termination for that employee. So on the legal side, that may actually turn into something that creates some liability for an employer," Henriquez said.
"But obviously you have to really consider that in the context of what this is. This is an unprecedented circumstance. So the legal may be different from the practical."
Some people are also concerned about being hired back on when things get back up and running.
"Technically speaking an employer could take the steps right now to lay people off, and there really wouldn't be a requirement to hire those people back," Henriquez said. "Again considering the unprecedented nature of this, one would hope that at this stage an employee who has been laid off may not pursue legal action given what's happening, given the unusual circumstances."
Henriquez said that it goes both ways.
"On the flip side, one would hope that an employer would be willing and able to say 'OK. Welcome back. Things are picking up. We would want to bring you back in.' And like I said if they don't do that, then they open themselves up to those rights on termination."
Situation is unprecedented
Henriquez said this situation is unprecedented but it has highlighted the need for employers to provide sick leave. A lack of sick leave, he said, will cause people to go to work when they are sick.
"What it essentially amounts to is a disincentive for people to stay at home. So what that ends up meaning is those individuals who are sick come in if they have the flu, they contaminate your workforce which at the end impacts an employer and their workforce in their operations," he said. "So paid sick benefits outside of today do still amount to a positive benefit for employees and for the workforces they're a part of."
With files from Bryan Labby and The Homestretch