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Laid Off Due to COVID-19 Pandemic? Learn How to Claim Your Rights

Posted on May 6, 2020

Since the start of this global pandemic there have been many Canadians that have suffered from employment loss. Losing a job can be devastating especially during these uncertain times. COVID-19 has made it not only mentally draining for many Canadians but also the added stress of losing income has made it nearly impossible to stay calm and unscathed.

Did you not completely lose your job but the uncertainty of temporary layoff has you concerned? Maybe you are still working but have taken a substantial pay decrease? 

All of these situations are causes to seek out EI, CERB and any other government income or subsidies. 

It is important to note that if any of these are your current circumstances there are legal protections available to you. It has become increasingly difficult as lawyers to monitor the consistent increases and changes of the wage subsidies, we can only imagine how it must be for non-lawyers facing job losses and an outbreak. We are prepared to address some questions that are probably on your mind, or have crossed it at some point.

Please note that if you have been laid-off and are seeking legal advice about the Employment Standards Act and/or think you might have been wrongfully terminated, contact us for a free 30-minute consultation. 

Question 1: I’ve been laid-off, what benefits can I access?

According to the Canadian government there are a couple conditions that are required to be in place before you can claim your Employment Insurance:

  1. The job loss must not be because of any choice on your part (i.e. resignation) or because of your own misconduct
  2. You must have been employed in insurable employment and worked a minimum number of insurable hours in the last 52 weeks. 

EI regular benefits are up to 55% of your insurable weekly earnings to a maximum of $573 per week. Unfortunately many people might not qualify for EI based on the fact that they are contract workers, independent contractors or simply do not meet the requirements. If you are in this circumstance you may be entitled to receive the Canadian Emergency Response Benefit (CERB). CERB is a new federal benefit covering those who are unable to work due to COVID-19 either because of job loss, sickness, quarantine, or taking care of someone (including parents) requiring you to stay home. 

CERB includes those who are under contract or are independent contractors who do not qualify for EI benefits. 

Question 2:  If I am temporarily laid-off do I still receive benefits? 

All temporary layoff rules are highlighted in the employment standards act (ESA). Temporary layoffs work by a weekly set schedule pertaining to how long the company thinks workers will be off work. 

Temporary layoffs can be defined as either, not more than 13 weeks in a 20 week period or more than 13 weeks in a 20 week period if conditions are met. If you fall under either of these conditions you are eligible to receive EI benefits. There are certain conditions where a lay-off may extend beyond the 13 weeks but in most cases the employee is considered terminated after the 13 weeks.

It is important to note that if your temporary layoff results in less than a $500/week payout it may be better to apply for CERB as that financial aid is greater. 

Question 3: Am I entitled to a severance package? 

The Employment Standards Act (ESA) does have protections for those who have been recently terminated. If your contract from your employer does not specify that you are only entitled to ESA minimum, then you may be entitled to more pay under common law. 

It is important to note that because of the global pandemic employers may argue “frustration” played a role in the termination of employees and that no notice is owing. If this is the case an employment lawyer can work with you in order to get you the answers and money you are entitled to. Because this situation has never been dealt with before we have yet to see how the Courts will approach this novel legal issue.

Question 4: Was my termination unlawful? 

For laborers in Ontario who are not unionized, employment may be terminated as long as the necessary measure of notice under either the ESA or the common law is given. 

How much time, or notice, is required is governed by your employment contract, or where no contract exists, by looking at various factors.  The age, salary, length of employment are all factors in the length or common law notice requirements. Having said that, a breach of human rights and or breach of health and safety rules are all cases where you might be exempt from basis ESA entitlements. 

Conclusion

If you have any questions or concerns about your recent unemployment status and believe that you are entitled to more than you are currently receiving please contact us for more details. COVID-19 is a very confusing time but it does not need to be confusing where your employment income is at stake. 

 If you would like to learn more about resources available to workers here are some help links: 

  1. https://workersactioncentre.org/
  2. https://canadabusiness.ca/government/regulations/regulated-business-activities/human-resources-regulations/employment-standards/
  3. https://www.labour.gov.on.ca/english/es/
  4. https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html#:~:text=Introducing%20an%20Emergency%20Support%20Benefit,who%20are%20facing%20unemployment.

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