News

By Jeff Smorang

The Government of Canada has consolidated its previously announced benefit programs (Emergency Care Benefit and the Emergency Support Benefit) into one program called the Canadian Emergency Response Benefit. This benefit is designed to help workers who have lost their employment due to the COVID-19 pandemic.

Canada Emergency Response Benefit (CERB)

This program will provide taxable income support payments of about $2000 per month to Canadians who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures. CERB will run for 4 months, backdated to March 15, 2020.

This program applies to all Canadians who have ceased working due to COVID-19, whether they are EI-eligible or not. It would also apply to those who are still employed but are not receiving income because of disruptions to their work situation due to COVID-19.

To qualify, applicants must have had $5,000 in employment income, self-employment income, or maternity or parental leave benefits for 2019 or in the 12-month period preceding the day they make the application.

Those who are already receiving EI Benefits will continue to receive them. Those who have applied for EI Benefits, but who have yet to be processed, will not need to re-apply as they will automatically be shifted to CERB.

Applications to CERB will be available in early April 2020.

EI Benefits After CERB

If workers are still unemployed after the 4-month CERB period eligible workers will be switched-over to standard EI if they are still out of work.

The Government of Canada has also relaxed eligibility for EI Sickness Benefits. Those forced to quarantine or self-isolate after the CERB coverage period would be eligible for EI Sickness Benefits.

The Government has streamlined the process for those affected by COVID-19 by giving their claims priority, by setting up a dedicated hotline, by allowing backdating, by waiving the one week waiting period and by not requiring any medical certificate requirements.

Lay-offs

Under CERB, the Employer does not need to lay-off employees as workers can be still employed and collect payments under CERB (as long as they are not receiving an income). If there is still a shortage of work after the CERB period, Employers may want to begin laying-off employees.

An employer can lay-off employees for a lack of work as long as they are likely to return to work once demand is back. Normally, a lay-off becomes a termination where the layoff is longer than 8 weeks in a 16-week period. However, in response to the economic impact of COVID-19, The Government of Manitoba has temporarily relaxed this rule. Any lay-off that occurred after March 1, 2020 will not count towards the normal 8 weeks maximum for lay-offs. While this temporary amendment is in effect, employers can lay-off workers indefinitely.

Laid-off employees can collect EI insurance benefits. An employer may also use a Supplemental Unemployment Benefit (SUB) plan to increase their employees’ weekly earnings when they are unemployed due to a temporary stoppage of work, training, illness, injury or quarantine. This can be used to “top up” regular EI benefits.

Payments from SUB plans that are registered with Service Canada are not considered as earnings and are not deducted from EI benefits.

Work Share Program

The Federal Work Sharing Program was originally designed for a downturn in business for the forestry, steel and aluminum industries. As part of the Government’s response to COVID-19, they have temporarily allowed access to this program for employers who are directly or indirectly experiencing a downturn in business of at least 10% due to COVID-19.

The program provides EI benefits to supplement the wages of eligible employees who agree to reduce their normal working hours and share the available work while their employer recovers. Any income earned from the Work Share Program is not deducted from the employee’s EI benefits.

All employees in each Work Share Unit must agree to reduce their hours of work by the same percentage. A Work Share Unit is a group of employees with similar job duties who agree to reduce their hours of work over a specific period of time. The unit generally includes all employees in a single job description or all employees who perform similar work. A Work-Sharing agreement may include more than one Work Share Unit.

Individual employees in the same job description cannot volunteer to participate in Work-Sharing while others decline to participate and continue to work normal hours. Members with the same job description may decline to participate in the Work Sharing Agreement and can be laid-off to collect regular EI benefits.

The Work Share Agreements are available in a unionized workplace, but the Union must also sign off on the agreement. There must be an equal reduction of hours and sharing of all available work among members of a Work-Sharing unit regardless of any seniority clauses in a collective agreement.

The reduction of hours can vary from week to week, as long as the average reduction over the course of the agreement is from 10% (one half day) up to 60% (three days). The goal of the program is for all participating employees to return to normal working hours by the end of the agreement.

If the employer’s company does not recover as expected and workers are laid off during, or at the end of a Work-Sharing agreement, they can apply to transfer to regular EI benefits.

Due to COVID-19, temporary measures have extended the eligibility of such agreements from 38 week to 76 weeks, eased eligibility requirements, and streamlined the application process.

To be an eligible employer the business must be a year-round business that has operated for at least a year in Canada, it must be a private business, a publicly held company or a not-for-profit organization and they must have at least 2 employees in the Work Share Unit.

To be an eligible employee, one must be a year-round, permanent, full-time or part-time employee who is needed to carry out the day-to-day functions of the business and you must be eligible to receive EI benefits.

The Canada Child Benefit

The Government has increased the Canadian Child Benefits for 2019 and 2020. The increase provides an extra $300 per child through the Canada Child Benefit for 2019-20.

By Jeff Smorang

I am worried I could be exposed to COVID-19 at my workplace. Can I refuse to report to work?

If your workplace remains open during the pandemic, and working from home is not a feasible option, you are expected to go to work. However, as an employee, you can expect a safe work environment. Under Manitoba’s The Workplace Safety and Health Act, an Employer has a duty to provide and maintain a safe workplace for employees. On top of this obligation, Employers of more than 20 regularly employed workers are also obligated to establish a Workplace Safety and Health Committee. Under the Act, the Committee is to actively identify potential health and safety risks and is responsible for implementing reasonable measures to mitigate those risks.

At minimum, reasonable mitigation steps for preventing exposure of COVID-19 could include increased sterilization of common workplace surfaces, promoting regular hand washing or providing hand sanitizer stations and ensuring social distancing of 1-2 meters between co-workers and customers. Enhanced mitigation steps may be required in other circumstances.

If a worker has a safety concern, the Committee is also responsible for receiving, considering and disposing of safety and health complaints.
Under section 43 of the Act, a worker may refuse to work, or to do particular work duties, if he or she believes on reasonable grounds that the work constitutes a danger to his or her safety.

There are general exceptions to the right to refuse dangerous work that would be taken into consideration. A worker cannot refuse work where the refusal places the life, health or safety of another person in danger or where the danger is inherent to the employee’s work.

The standard process for refusing dangerous work has 3 steps:

Step 1
The worker must report the work refusal to their supervisor and explain why they believe the work is dangerous. The supervisor and worker will work together to assess the risk and resolve the concern. Until the dangerous condition is remedied, or it is determined that there is no risk to safety, the worker who reported it may continue to refuse to work.

Step 2
If the employer and the worker are unable to agree on a resolution, a worker representative from your Committee, or another worker, can be brought in to help assess the situation and attempt to resolve the issue.

Step 3
If the Employer does not remedy the situation, the worker may continue the refusal and report the situation to Manitoba Workplace Safety and Health where a Safety and Health Officer is assigned immediately. Where necessary, the Officer will attend the workplace and make a final decision on whether the situation constitutes a danger or not.

Under the Act, the worker is entitled to be paid during the entire investigation process and cannot be subject to discriminatory treatment for having made a legitimate work refusal.

In the case of COVID-19, an Employer or Safety and Health Officer will have to determine, on a case by case basis, whether the risk of exposure is reasonably high enough to constitute a dangerous workplace. What is reasonable for exposure to COVID-19 will be influenced by our evolving scientific understanding of the virus and our Federal/Provincial Health Care directives. As of March 26, 2020, Manitoba has four public health orders in place. These orders limit public gatherings of more than 50 people and require businesses to ensure social distancing. The 50-person limit applies to theaters and hospitality businesses such as restaurants, however it does not apply to retail or manufacturing businesses.

At the moment, it is unlikely that a generalized fear of exposure to COVID-19 will be seen as reasonable grounds for refusing to work. That being said, if a worker is able to point to additional reasons as to why they are at a higher risk of exposure than the general public, either because of their personal circumstances or the circumstances of the workplace, a refusal to work may be reasonable. Some additional reasons may include (but are not limited to) the following:

• the age and health of the worker refusing to work;
• if there had been any suspected or confirmed cases of COVID-19 relating to the workplace;
• if any co-workers have recently traveled internationally in past 14 days;
• if the work requires you to travel, depending on the destination;
  the Employer’s pandemic policies and measures in effect, for example increased sterilization of workplace surfaces or social distancing; and
  the type of work performed and the relative risk of exposure (for example, whether the work requires face to face contact with customers, clients or patients).

Workers who are concerned about their health and safety at work during the COVID-19 pandemic should bring these concerns to their supervisor or to their Workplace Safety and Health Committee.

Mel Myers 2020 Labour Conference Rescheduled

Due to health concerns arising from the recent spread of the COVID-19 virus, which continue to evolve on a daily basis, the lawyers at Myers LLP have decided today to reschedule the Labour Conference which was to be held next week on March 19 and 20 to November 9 and 10, 2020, at the Victoria Inn Hotel and Convention Centre.

We apologize for this inconvenience but, in all the circumstances, we feel that it is prudent and in everyone’s best interests that we follow the expert advice we are all receiving to limit or eliminate group gatherings over the next short while, in an attempt to slow the spread of this virus in our province.

We will be in touch with you again as further information becomes available. Registrants who are unable to attend at the rescheduled Conference will be entitled to a full refund.  If you have any questions please contact Elena Gagliardi at elena@plannersplus.ca or by phone at 204-255-7006.

Myers LLP is pleased to announce that Garth Smorang, Q.C. has been inducted as a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America, at its 2020 Spring Meeting in Tucson, Arizona.

Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada and Puerto Rico. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality.

Membership in the College cannot exceed one percent of the total lawyer population of any state or province. Currently, 12 Manitoba lawyers are Fellows of the College, one of whom is our own Hymie Weinstein, Q.C.

The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.