Can I refuse to go to work because of COVID-19 concerns? Will I be paid?

Employment lawyer Howard Levitt answers more of your workplace questions regarding the coronavirus pandemic

There was considerable consternation in the employer community in response to my column last week.

As employment insurance claims jumped to a million in a few weeks, employers were upset to learn that most of the layoffs could result in claims against them for wrongful dismissal.

But, other than in New Brunswick and Alberta (where the statutes are different and the law presently uncertain), that is indeed the case.

Employees do not have to accept unpaid layoffs but can sue, instead, for wrongful dismissal. Ironically, that might be the best strategic route for an employee as it induces the employer to bring them back to work. If the employee refuses to return, their potential damages end as of that date. As a result, employees who sue may end up being recalled prior to employees who politely accept the layoff.


So, what are employers who must continue to pay salaries but are generating no revenue due to COVID-19, supposed to do?

I have never seen such a period in my 41-year career. Never has there been such a massive amount of layoffs and terminations in such a short period. Many employers, who cannot reduce their overhead without laying off some or all employees, will not survive. Dismissal cases will hasten that result for many.

What I have advised my employer clients is to provide employees a choice. They can either accept a layoff without pay but with benefits, on the basis that they will be recalled when work resumes, or be terminated.

Most, in my experience, are accepting layoffs for fear that, unless they return to their employer, they will be unable to find other work in what is expected to be a new era of high unemployment. If an employee accepts the layoff when provided this choice and signs the requisite agreement, they will have no viable claim for dismissal if they later change their mind.

To protect themselves, employees accepting layoffs in these circumstances should make clear, in writing, that they are accepting the layoff because of the unique circumstances, but do not accept the employer’s right to lay them off in the future.

Even if an employee agrees to the layoff, it will automatically convert to a dismissal if they are not recalled when new workers are hired or if the layoff exceeds the maximum period for layoff permitted in the Employment Standards Act.

But this does not provide an employer with the right, absent employee agreement, to lay employees off for these periods or at all.

I invited questions in my previous COVID-19 column and will devote Saturday columns to answering them, as well as provide general workplace advice related to those issues.

Here are a sample of questions I received, with my answers:


For those who are required to work but are uncomfortable attending, ask your employer for consent to work from home, or, if that is refused, for an unpaid leave of absence. At a minimum, employers must ensure social distancing, a sanitized workspace, and that no one be permitted to enter the workplace who has returned from another country or been near an infected person for 14 days or displays symptoms of COVID-19.

If the employer does not ensure a safe workplace, an employee can refuse to work and cannot be fired for that. But if the employer insists on your attending work which you view unsafe, you must inform your employer and ask that an Occupational Health and Safety Inspector make a determination.

Given that safety officers are extraordinarily backlogged right now, you will have a long initial period before you could be forced to work. If they attend and rule it is safe but you still refuse to work, you can be dismissed for cause.

Hopefully, employers for moral reasons will permit the employee a leave of absence instead. If they rule it is unsafe, then you need not attend the workplace. At that point, the company laying you off without pay, without providing you the ability to work from home or providing a safe working environment, would be considered a case of constructive dismissal.

I have to close my business because the province said so. Can I be sued by my employees?

If you are ordered to close, than you are at no risk of being sued for laying off employees during the period that you are ordered to close. That is called the defence of legal “frustration.” However, if you continue to lay off employees after the government permits you to reopen, that becomes a wrongful dismissal. There has been considerable confusion, even among legal commentators, about the defence of frustration and force majeure. Force majeure applies to contracts. Frustration applies if performance is rendered impossible such as a government shutdown, not when it is rendered merely uneconomic.

You have spoken about the rights of non-union employees. What about unionized ones?

Unionized employees cannot sue for constructive or wrongful dismissal and, unlike a non-union worker, an employer has an absolute right to lay them off, subject to collective agreements.

If you have a dispute, a unionized employee is subject to the union agreeing to fight for them. Given the many claims by members to relief at the current time, unions have even more legal discretion in deciding which cases it wishes to use its resources to fight.

I am part of the gig economy, do I qualify for EI?

Generally, gig economy workers such as ride-share drivers are not considered employees and are not eligible for EI.

However, many gig economy workers may be eligible for Ottawa’s new Canada Emergency Response Benefit, which provides a new benefit of up to $1,800 per month (after tax) for up to 4 months to those who are at least 15 years of age, earned at least $5,000 in 2019 or in the past 12 months, and who ceased working for at least 14 days due to COVID-19, regardless of EI eligibility. CERB is a simpler and more accessible replacement for the previously announced Emergency Care Benefit and Emergency Support Benefit.

The new benefit is available to people who are in any the following circumstances:

1. Workers who have to stop work due to COVID-19 and don’t have access to paid leave or other income support;

2. Workers who remain employed but have been asked not to come to work and are not being paid due to insufficient work;

3. Wage earners and self-employed workers, including contract workers, who would not otherwise be eligible for EI;

4. Workers who are unable to work because they are sick, quarantined, or taking care of someone who is sick with COVID-19; and

5. Parents who have to stay home from work without pay to care for sick children or children who need care due to school and daycare closures.

The CERB will be accessible through a web portal or via an automated telephone line beginning in early April. The government estimates that applicants should receive their benefit funds within 2 days through e-transfer or within 10 days through the mail.

Note, however, that the CERB is not available to workers who quit their employment voluntarily.

For more information about the Emergency Care Benefit and others, you can visit this website.

I have to stay home to look after my children/family members, can I be fired? Can I work from home and look after my children?

Employers have a right, if they permit you to work from home, to have that work uninterrupted by childcare or eldercare work. However, unless daycare arrangements can be found, they do not have the right to prevent you from remaining home. It might be unpaid, though.

Firing or disciplining you because you stayed home to look after family members would be a breach both of Ontario Premier Doug Ford’s new legislative changes in the province and the Human Rights legislation throughout Canada.

If you were dismissed for staying home to look after your children, you could be entitled to reinstatement, back pay and additional non-taxable damages for breach of your human rights.

This CERB also applies to working parents who must stay home without pay to care for children due to school or daycare closures. The benefit applies regardless of whether the individual is eligible for EI.

I will be answering further inquiries in future Saturday columns. If you wish your question answered, write to me at


