Business continuity is on everyone’s lips. The days come and go and each one is different. In these unstable times, concern for maintaining employment and the well-being of employees remains a priority for businesses.
We are aware that the daily management of the crisis requires much energy on your part and numerous measures have been put in place.
In an effort to provide you with some answers, our team of experts has prepared a FAQ on health and the management of your daily life which, we hope, will be very useful to you.
Do not underestimate the consequences of this pandemic. Remain proactive so that you can manage the present, but especially, ensure your future, because after the crisis, comes recovery!
Maintaining employees’ health and jobs | What can I do?
N.B.: The answers provided in this section are simply general guidelines regarding the parties’ rights and obligations, and do not constitute in any way legal advice. Should you have any concerns, we strongly recommend you contact a labour law lawyer.
What are my obligations towards employees who are teleworking?
Telework vs. private life
Regardless of where the employee’s workstation is located, you are within your right to supervise the employee’s work. However, this must be done in a limited fashion, in accordance with your privacy obligations.
SST (risk management for employees working from home)
In principle, in the case of telework, employers maintain the same obligations of providing safe, risk-free work environments. Similarly, employees that get injured while working from home could technically be compensated by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) for the duration of their work disability and medical treatment.
Read our article on telework management for more relevant information.
What is the difference between layoffs and dismissals?
Layoffs are a temporary staff reducing measure, normally for economic reasons, while dismissals are final measures that sever the employment link between workers and your business.
In the current situation, if you are cutting jobs temporarily due to the restrictions resulting from COVID-19, then you are carrying out layoffs.
Do I need to respect seniority when implementing layoffs as needed?
For non-unionized businesses, the labour laws do not establish any requirements pertaining to seniority.
However, if you have employees with same or interchangeable tasks, it is normally preferable to respect seniority unless one of the employees in question has greater expertise or more skills than his/her other colleagues.
Also, if your usual practices dictate that seniority should apply, it is preferable to continue in this manner for conducting layoffs.
Do I need to use up vacation banks or pay a notice of termination to the employees I lay off?
The answer is no to both questions. Given that this is a temporary situation, you are not required to pay a notice of termination or use up the employee’s vacation bank.
Nonetheless, if the layoff goes beyond six months, you will have to pay the notice of termination required by the law and pay the employee for banked vacation amounts (see CNESST).
Do I have different obligations if I lay off a high number of employees?
As soon as 10 or more people are laid off in a same establishment in the course of two consecutive months, this constitutes a collective dismissal, which is covered by specific provisions of the Quebec Labour Standards Act (LSA, s. 84.01 and following).
These provisions require, among others, the payment of a specific notice of termination, payable to employees affected if the layoff is expected to last more than six months, or the end of the six months if the layoff was for an undetermined duration at the time the employees were laid off.
However, in the case of the current crisis, the governments are implementing different actions and are reviewing the rules that prevail in order to help businesses and workers. We encourage you to assess your situation with firms specialized in labour law to obtain an answer tailored to your situation.
What are my obligations to my immigrant employees on temporary work permits only?
Your obligations to immigrant employees with only temporary work permits are the same as your obligations to your other employees. However, it is not clear whether they will be entitled to EI benefits if they are laid off.
You should consult your immigration advisors who are more familiar with the specifics of your business. Furthermore, the Ministère de l’Immigration, de la Francisation et de l’Intégration website is the most up-to-date source.
Maintaining health, safety and well-being in the workplace | A shared responsibility
We invite you to refer to the various government, CNESST and Ordre des conseillers en ressources humaines agréés websites for continuous and up-to-date information.
Occupational health and safety
Some of my employees refuse to come to work despite the sanitation measures I’ve put in place: can I order them to come in?
The same concepts of the right to refuse under the Occupational Health and Safety Act (OHSA) also apply to the Coronavirus situation, i.e., a worker has the right to refuse to perform work if he or she has reasonable grounds to believe that the work in question, or the context in which it is performed, endangers his or her health.
In such a case, only a CNESST inspector is in a position to decide whether these grounds were reasonable or not, based on the measures that the employer had put in place.
Therefore, if you need to maintain your operations in whole or in part, it will be important to put in place initiatives that address the risks of contamination.
Creating an ad hoc working committee, made up of management members, your management team, the union and employees, is an excellent way to engage your employees and involve them in the search for solutions.
If I maintain my operations in whole or in part, what are my obligations to my employees with regard to the risks of contamination?
You must provide your employees with a hazard-free work environment. Therefore, you must ensure that workplaces comply with established recommendations to limit the risk of contamination:
• Distance between individuals;
• Limit the numbers in gatherings;
• Frequent cleaning and disinfection according to sanitary standards and hygiene products to be provided to employees.
If an employee has infected other employees, will this be considered an employment injury?
The Act respecting industrial accidents and occupational diseases (LATMP) stipulates that any occupational injury (or disease) arising out of or in the course of work constitutes an event that is compensable by CNESST. Therefore, yes, such contamination would certainly be compensable.
What should be done with personal protective equipment (PPE)?
You must ensure that equipment is not transferred from one colleague to another or that it is cleaned and disinfected. Employees are responsible for their own safety and each must ensure that the equipment at their disposal is cleaned and disinfected as required. However, employers must provide employees with the means and tools to do so and supervise the performance of this task.
If I believe that one of my employees is infected, do I have the right to impose self-quarantine?
Not only do you have the right, but it is also your responsibility to do so if you have serious or reasonable motives for considering that they might be infected.
One of my employees just returned from vacation abroad: how should I manage the situation?
The authorities have clearly specified that anyone returning from a trip outside Canada must place themselves in isolation (quarantine) for 14 days. Therefore, as an employer, you must remove them from work for the duration of this quarantine.
Health and well-being in the work place
I don’t have group insurance or a sick leave plan: How are my laid-off employees covered?
The situation is changing day by day and the governments of Canada and Quebec are putting in place additional programs to help support employees and businesses with wage benefits. We invite you to visit our website for a follow-up of the support measures we carry out on a daily basis. You can also refer to the following sites:
How can I support my employees who are feeling anxious because of the current situation?
First, be aware that your employees may experience anxiety and stress related to the pandemic. Financial insecurity, fear of contracting the virus, lack of social contact and ongoing family life can be major triggers if not managed.
So, if your company offers Employee Assistance Program (EAP) services, it would be important to put them in touch with this service as soon as possible. Otherwise, we strongly recommend that you use the services of the CLSC in your administrative district or in the area where your employee lives.
L’Ordre des psychologues du Québec also provides online, accessible and confidential services.
For more information, you can refer to the Services Québec or Services de santé et services sociaux du Québec websites.
This FAQ was written in collaboration with Katy Langlais and Martin Lafrance.