Employer section

Q1: What’s happening with the COVID-19 Worker Assistance Program (PATT COVID-19) announced by the Québec government—has it been replaced by the federal government's Canada Emergency Response Benefit?

A1: The COVID-19 PATT is compatible with the Canada Emergency Response Benefit (CERB) announced on March 25, 2020, by the federal government. Those already registered with the PATT will also be able to apply for the CERB. However, it is not yet clear whether they will be able to receive both benefits at once. Governments will provide more details on this issue shortly.

Q2: Am I required to pay compensation or severance pay to the workers I am laying off?

A2: No, you do not have to pay compensation or severance pay to these employees. Note that if you are planning a layoff of less than six months, they will keep their job with your organization, without pay, while waiting to be called back to work. However, these workers can apply for the Canada Emergency Response Benefit, a program for all Canadians experiencing loss of income due to the COVID-19 pandemic.

Q3: Which businesses are ordered to close until May 4, 2020?

A.: On March 23, 2020, Québec premier François Legault ordered the closure of all companies and businesses, except those offering essential services, until April 13, in order to limit the spread of COVID-19. The full list of services and companies that will remain open will be updated on the Québec government website.

if your business conducts an activity that is not listed above, but you consider it essential, you can verify the designation as an essential business. if you have any questions, you can ask the Québec government for details using this form.

Q4: How do you respond to an executive who insists that employees come to the office, even if it’s not really necessary?

A4: Employers must follow the instructions the public health authorities have given and put the health of workers first. If employees can telework, and if their presence on the company's premises does not provide an essential service, they should not be required to attend. In addition, the Government of Québec announced on March 23, 2020, that all businesses in the province that offer non-essential services must close their doors until April 13, 2020.

Q5: Can an employer take the temperature of employees when they show up for work?

A5: While this seems an intrusive measure, the current crisis allows employers to take more drastic measures to ensure the health of employees. Employers considering this approach must make sure to have a solid scientific protocol to support the measure. In the best-case scenario, a health professional may be consulted as necessary, for example where a second opinion is required. It is also important to clearly communicate how this measure works, what the consequences are and when they apply. This ensures that workers understand the approach and, ideally, comply with it.

Q6: I am repatriating workers from another Canadian province. Do they need to follow the same rules as people returning from abroad?

A6: Although it is not legally mandatory at this time, as a precaution for the health and safety of workers, we recommend these people be quarantined, especially since the government of Canada has now asked Canadians to limit interprovincial travel.

Q7: In the current pandemic, do dismissal notices and severance pays apply to layoffs or is the current context considered a case of force majeure?

A7: First of all, let’s differentiate between temporary layoffs and dismissals.

For unionized employees, this situation could justify layoffs without notice, despite existing collective Agreement provisions. It should be noted that two conditions apply:

The layoffs are justified on serious and documented grounds;
Steps are being taken to limit the length of layoffs over time.

The concept of "force majeure" is not a matter of public policy. The collective agreement may provide for a specific definition. It is therefore important to have the situation analyzed by legal counsel.

Non-unionized employees may be laid off without pay or notice if the layoff is for no more than six months for employees governed by the provincial labour standards act and for a period of three to six months, depending on the situation, for employees governed by the Canadian labour code.

Finally, if a temporary layoff is considered a constructive dismissal under the civil code of Québec, the employee could claim a notice period under section 2091. The employer could attempt to invoke the concept of "force majeure" (an unforeseeable and unstoppable event) to free itself from this obligation. This situation is exceptional, so it is likely that the Québec courts will call it a "force majeure". However, the pandemic must make the application of Section 2091 of the Civil Code of Québec impossible, not just more difficult or more expensive.

Here are two references:

Force majeure and impact on corporate obligations in Québec

What is COVID-19 results in a business?

KEEP UP TO DATE!

Rumours and fake news are also spreading quickly. Here are three sources of reliable official information.

Quebec.ca/coronavirus. In addition to Premier Legault’s daily press conferences, the government of Québec has created this resource which covers health measures being taken by the province.

Canada.ca/coronavirus. Information on COVID-19 from the government of Canada, including information on international travel and Canadians currently abroad.

World Health Organization (WHO). WHO provides information on the spread of COVID-19 around the world, as well as health advice, on this site. Updated daily.

Q8: What financial assistance am I entitled to?

A8: This process map produced by the Ordre des conseillers en ressources humaines agréés (and recreated by Mazars) represents our current understanding of the various government measures announced.

Tableau Employeur Covid-19 - Infos et recomm. ENG

Q9: What financial assistance is my employees entitled to?

A9: This process map produced by the Ordre des conseillers en ressources humaines agréés (and recreated by Mazars) represents our current understanding of the various government measures announced.

Tableau Employé Covid-19 - Infos et recomm. ENG

Q10: What strategies should employers implement to get through the pandemic?

A10: In a pandemic, many businesses will be required to close and will be faced with abnormally high rates of absenteeism, with employees in self-isolation or assisting a self-isolating family member, and others who refuse to report to work for fear of being exposed to the virus.

Organizations need to have an up-to-date business continuity plan (BCP) in place to minimize disruption to their operations. This plan should include:

A policy on infectious diseases that makes it possible to roll out the required hygiene measures in a timely manner;
The specified chain of command;
A breakdown of critical operations;
A list of resources that can step in should there be a shortage of workers or a service interruption with a business partner.

A BCP may also include training tools and an absence management policy.

Q11: Should businesses encourage employees to work from home to mitigate the spread of the virus?

A11: The most common way COVID-19 is spread is through respiratory droplets (sneezing or coughing) or physical contact with an infected person or a contaminated surface.

Working remotely is therefore a good way to control the spread of the virus by limiting person-to-person contact. It is recommended for this option to be included, in an infectious disease prevention policy and a BCP.

Q12: Can an employee be forced to self-isolate at home for 14 days if their employer believes they have been in contact with an infected person?

A12: An employer is required to apply the self-isolation protocol recommended by public health authorities only if there are “reasonable grounds” for doing so, i.e., if the employee in question confirms having travelled after March 12, 2020, or believes they have been in contact with an infected person.

Q13: Can an employer disclose the names of employees who have tested positive for coronavirus for prevention purposes?

A13: Employers must contact public health authorities in the event of a reported case of COVID-19 to obtain the necessary recommendations.

All workers must also be apprised of the situation, along with anyone who has been in direct contact with the infected person. Keeping this information secret could expose the employer to claims later on.

Although it is critical for employers to take all the necessary measures to protect the health, safety and physical well-being of their workers, they are also bound to comply with all applicable legislation on privacy and human rights.

Accordingly, subject to the relevant health and safety legal provisions, employers must avoid disclosing the identity of employees who are infected, or thought to be infected, with the virus. However, in the event a state of emergency is declared, which is now the case, individual privacy takes a back seat to public safety.

The Emergency Management Framework for Canada defines an emergency as a "present or imminent event that requires prompt coordination of actions concerning persons or property to protect the health, safety or welfare of people, or to limit damage to property or the environment".

This is subject to information provided by firms specializing in corporate law (Osler and Blakes) : "As an exception, Canadian privacy legislation permits the use and disclosure of personal information without knowledge or consent in an emergency that threatens the life, health or security of another individual".

Q14: What are an employer’s obligations if an employee is infected?

A14: If an employee is travelling and reports the infection prior to their return, the employer is bound to ask for a medical certificate prior to letting the employee return to work.

If an employee shows up at work infected, the employer has a duty to communicate with public health authorities to learn the proper measures to decontaminate the premises and manage the situation.

Q15: Are employees required to use their accumulated vacation hours or sick leave before claiming employment insurance benefits or government assistance?

A15: Technically, the answer is no. An employer cannot force an employee to go on vacation. On the other hand, we have seen several employees who have chosen this route, because their salary is more generous than the employment insurance benefits they would receive. It is an option both parties might agree upon, if mutually beneficial. It should be understood, however, that this will further delay the payment of their CERB benefit.

Q16: Must I indicate a return date on the Record of Employment?

A16: No, you do not have to indicate a return date.

Q17: What happens with group insurance?

A17: You must see with your group insurance provider about your obligations and those of the employee. There are several situations where the employee must keep his/her insurance coverage, because there is a temporary layoff involved here. The employee may have the obligation to keep his/her insurance coverage for a specified period, for example three months. Insurance companies must be notified by indicating the names of employees temporarily laid off (departure date, return date unknown). If the return is before the end of the group insurance coverage (e.g. three months), notify the insurance company upon return.

Q18: Which best practices should businesses adhere to during this crisis?

A18: Given the extraordinary circumstances of the coronavirus outbreak, businesses are urged to adopt the following best practices to effectively manage the repercussions of the crisis:

Implement a business continuity plan. Make a list of your priority operations that must be upheld in the event of a significant number of employee absences, along with measures for protecting employees who are at work;
Stay in constant touch with employees to minimize the panic and anxiety that often arise in such situations (read our advice on this subject). This applies equally to prevention and self-isolation measures, compensation and leave policies in the event of absence or isolation, or a scenario wherein a company foresees a market slowdown. Transparency is almost always preferable to uncertainty and hearsay;
Should a company experience a downturn, the recommendation is to explore alternative measures, wherever possible, before proceeding with temporary layoffs. These measures can include voluntary leave without pay, reduced hours, recruiting freezes and more;
Once again, the work-from-home option should be favoured to maintain employees’ activities and ensure they continue to be paid, whenever possible;
In this situation, please remember that employees who cannot go to work because of the virus and who have exhausted their sick leave and other options will be entitled to employment insurance benefits from day one, without any waiting period. This is one of the measures announced on March 11 by Prime Minister Justin Trudeau to offset the economic repercussions of COVID-19;
Finally, it is important to bear in mind that employee loyalty is critical to all businesses. Once the crisis is over, the staff support measures put in place by employers, capacity allowing, will make a big difference when it comes to longer-term employee retention.

Communicate regularly with employees

Employers are asked to be vigilant and stay alert to advisories issued by public health authorities at the municipal, provincial and federal level. The goal is to ensure they are aware of their duties and obligations as they relate to the crisis, especially as regards labour standards, individual rights, workplace hygiene and on-the-job safety. But they must also ensure their employees are informed and provide regular updates on the situation.

It is important to keep lines of communication open with employees and provide them with regular updates on the measures you have adopted as well as your policy on payroll continuity in any given scenario:

For employees who are sick;
For employees staying at home to take care of a loved one who is sick;
For employees you ask to self-isolate at home even in the absence of symptoms;
For employees who report having been in contact with someone who is symptomatic or who is returning from travel and is quarantined.

Even if you feel your policies on absence and leave are already clear, take a moment to review them with your staff. Consider how you could provide other budget-friendly means of financial support for affected employees.

Information on employment insurance and layoffs as a direct result of COVID-19

Québec employers under provincial jurisdiction facing reduced income or business due to the economic slowdown caused by COVID-19 may proceed to temporary employee layoffs.

Before proceeding to this measure, we recommend speaking to a legal advisor.

If you think the temporary layoff will be for a period of less than 6 months, no written notice is necessary. However, it will establish a paper trail on the reasons for layoffs and document the effects of the current crisis.

Employees will keep their jobs during the layoff, without pay, and wait to be called back to work.

When you notify your employees of the layoff, you must produce a Record of Employment and submit it to Service Canada, which uses the information in this Record to determine whether an individual is eligible for EI benefits, in what amount, and for how long. See the instruction guide to fill out the Record of Employment.

Also, employees eligible for EI must remain available to work and be seeking employment.

If the layoff is due to lack of work, for example, you would indicate this with code A. For a list of codes, please see the Employment Insurance Website.

In order to be eligible for EI due to lack of work, employees must apply for EI and have worked a minimum number of hours within the reference period. See details here.

Where layoffs should exceed the six-month period, employers will be required to pay employees as provided for under the Labour Code at the end of the six-month period.

Also, from the time you can determine that the layoff will last six months or more AND if the layoff affects 10 employees or more working at a single establishment, you must provide a notice of group termination to the Ministère de l’Emploi et de la Solidarité sociale in addition to providing employees with prior notice of the termination of employment.

The law provides for some exceptions and different deadlines in this area; therefore, we advise you to seek legal counsel on the matter.

Working Sharing Program

It is important to emphasize that adding these special measures to the EI program also affects the Work-Sharing Program. These changes are as follows:

The maximum duration of a Work-Sharing contract has been extended from 38 to 76 weeks;
The mandatory waiting period between Work-Sharing contract applications has been waived;
The federal government intends to ease WS mandatory Recovery Plan requirements (details to come).

For more information, click here.

We recommend you to follow developments from the federal and provincial governments on financial aid measures for businesses and workers.

PAYROLL AND COVID-19

Questions and answers from the payroll infoline provided by The Canadian Payroll Association

COVID-19 ANSWERS TO EMPLOYERS’ QUESTIONS FROM THE CANADIAN PAYROLL ASSOCIATION

In response to the outbreak of COVID-19, on March 11, 2020, the Federal Government of Canada has announced several measures to assist eligible employers and employees. The announcement included the following measures pertaining to payroll that will allow the government to:

Provide support to workers in quarantine or who have been directed to self-isolate and who will claim Employment Insurance (EI) sickness benefits by waiving the mandatory one-week waiting period so they can be paid from the first week of their claim. Currently Employment Insurance (EI) sickness benefits can provide up to 15 weeks of financial assistance if you cannot work for medical reasons. If eligible, employees could receive up to 55 per cent of their earnings to a maximum of $573 a week. The government is also exploring additional measures to support other affected Canadians, including income support for those who are not eligible for EI sickness benefits.
Introduce enhancements to the Work-Sharing Program to help support employers and their workers who are experiencing a downturn in business due to COVID-19. These enhancements will double the length of time that employers and workers are eligible to use workshare from 38 to 76 weeks and streamline processes so help can be accessed as soon as possible. Employers may access information on the Work-Sharing Program from the government's website.
Employment and Social Development Canada has also devoted a website to COVID-19 containing additional information on topics such as:
Employment Insurance;
Occupational Health and Safety; and
Work-Sharing Program

On March 18, 2020, the Government of Canada announced other measures, including the waiving of the requirement for claimants to provide a medical note when applying for EI sickness benefits, the introduction of an Emergency Care Benefit and an Emergency Support Benefits.

More information is available here:
https://www.canada.ca/en/department-finance/economic-response-plan.html

RECORD OF EMPLOYMENT: BLOCK 16 – REASON FOR ISSUING THE RECORD OF EMPLOYMENT (ROE)

REMINDER: When issuing a ROE, do not complete the Block 18 – Comments section. Any comments will remove the ROE from the automation process and will slow down the claims process.

Q19: Our employee returned from an international trip and was quarantined for two weeks. What is the reason code to use on the ROE?

A19: For an employee who is under quarantine or self-quarantine due to COVID-19, a ROE must be issued with the reason code “D” for illness or injury (there is no specific ROE code for quarantine).

Q20: If employees are sent home because the company is temporarily closing, what would be the reason code on the ROE?

A20: The reason code on the ROE would be “A” – Shortage of work / End of contract or Season.

Q21: We are going to have to close parts of our business because of COVID-19. What code do we use on the ROE?

A21: If the termination is due to “Shortage of work” use Code “A” Shortage of work.

Q22: What is the reason code on the ROE for employees who refuse to report to work due to risk of exposure to COVID-19?

A22: Employers are recommended to use Code N (Leave of absence).

LAYOFF AND EMPLOYMENT INSURANCE BENEFITS (EI)

Q23: Is a doctor’s note required to access EI Sickness Benefits?

A23: Typically, a signed medical certificate is required to access EI benefits. However, as of March 15, 2020, a medical certificate is no longer necessary for individuals required to go into quarantine by a public-health official or by law. These workers only need to declare that they have been placed in quarantine to access sickness benefits.

On March 18, 2020, the Government of Canada announced that the requirement to provide a medical note for all claimants who apply for sickness benefits will be waived. This measure is not in place.

Q24: Can an Employer top up an employee’s Sick Benefits?

A24: Yes, an employer can register a Supplementary Unemployment Benefit Plan (SUBP) with Service Canada to top up an employee’s EI benefits during a period of unemployment due to a temporary layoff and/or sickness.

SUB plans must be registered before their effective date and must meet the requirements set out in subsection 37(2) of the EI Regulations. They must:

Identify the group of employees covered and the duration of the plan;
Cover a period of unemployment caused by one, or a combination of, the following:
- Temporary stoppage of work;
- Training;
- Illness, injury or quarantine;
- Require employees to apply for and be in receipt of EI benefits in order to receive payments under the plan;
- Require that the combined weekly payments from the plan and the portion of the EI weekly benefit rate does not exceed 95 per cent of the employee’s normal weekly earnings;
- Require it to be entirely financed by the employer;
- Require that, on termination, all remaining assets of the plan will be reverted to the employer or be used for payments under the plan or for its administrative costs;
- Require that that the plan be submitted to the Commission prior to its effective date and that written notice of any change to the plan be given to Service Canada within 30 days after the effective date of the change;
- Provide that employees have no vested right to payments under the plan except during a period of unemployment specified in the plan;
- Provide that payments in respect of guaranteed annual remuneration, deferred remuneration or severance pay will not be reduced or increased by payments received under the plan.

If all the conditions are met, the plan will be registered under the employer’s business number and a notification of the approval will be provided to the employer. Any amounts paid prior to the plan being registered will be treated as earnings and may be deducted from the employee’s EI benefits.

Q25: As a result of COVID-19, schools are closed and employees may place their children in daycare, where such service is still operational. If employees are provided with an allowance to cover the daycare expenses, is this allowance considered a taxable benefit?

A25: The daycare allowance paid by the employer is a personal allowance and therefore taxable and subject to the Canada Pension Plan (CPP), Employment Insurance (EI) and income tax. The allowance would be reported on Box 14 and Code 40 of the T4.

For Revenue Québec purposes the amount would be subject to the Québec Pension Plan (QPP), the Québec Parental Insurance Plan (QPIP), and Québec Provincial Tax and would be reported in Boxes A and L of the RL-1.

Q26: We are continuing to pay employees who cannot return home from another country or who are in self-isolation. Are their earnings and hours considered taxable and insurable?

A26: If the employer maintains the employee’s salary, the payment is treated as a salary continuance which is subject to all statutory withholdings: C/QPP, EI, QPIP as well as federal and provincial income taxes. The hours and earnings are considered insurable.

Q27: An employee is caring for a family member who has tested positive for COVID-19. Should the employee apply for EI benefits under compassionate care leave?

A27: An employee can apply with Service Canada for Family Caregiver or Compassionate Care EI benefits and may be eligible for those benefits if they meet all entitlement conditions. As a caregiver, you don’t have to be related to or live with the person you care for or support, but they must consider you to be like family.

Family caregiver benefits provide:

Up to 35 weeks for taking care of a critically ill or injured person under 18;
Up to 15 weeks for a critically injured person 18 or over;
Compassionate care benefits provide up to 26 weeks, for a person of any age who requires end-of-life care.

To receive the Family caregiver benefit for adults or children, the caregiving recipient’s life must be at risk as a result of illness or injury and there must have been a significant change in their baseline state of health.

To receive the compassionate care benefit, the caregiving recipient must have a serious medical condition and be at significant risk of death within 26 weeks.

An employee can receive benefits during the 52 weeks following the date the person is certified by a medical doctor or nurse practitioner to be critically ill or injured or in need of end-of-life care. You can take the weeks of leave within this time frame either all at once or in separate periods. The weeks of leave can be shared by eligible caregivers, either at the same time or one after another.

Q28: Are there any special measures related to the work-sharing program?

A28: The Government of Canada has put in place temporary special work-sharing measures for employers affected by the downturn and to support employers and workers affected by COVID-19.

These measures extend the duration of work-sharing agreements by an additional 38 weeks — for a total of 76 weeks. The mandatory waiting period has also been waived so that employers with a recently expired agreement may immediately apply for a new agreement, without waiting between applications and ease Recovery Plan requirements for the duration of the work-sharing agreement.

Q29: Are all affected employees entitled to EI benefits?

A29: If an employee is directly affected by COVID-19 (that is, they are sick or in quarantine) and is requesting EI sickness benefits, they can contact the Employment Insurance special campaign line at 1-833-381-2725. This campaign is exclusively dedicated to enquiries from clients who are directly affected by the COVID-19. The Commission will determine the EI benefit entitlement.

Q30: What about employees that can’t work due to businesses being closed for COVID-19 safety?

A30: If the employer chooses to close the business for COVID-19 safety reasons, this will be treated as a layoff. A ROE must be issued using Code “A” Shortage of Work – Layoff.

Q31: If the business is closing due to COVID-19, do we have to pay employees a notice period and do they have to follow required layoff notice before termination?

A31: There is no requirement to pay notice pay when there is a temporary layoff. Each jurisdiction has legislation that limits the length of time a layoff can be in place before it is considered a permanent ending of employment by the employer. The labour and employment standards of most jurisdictions distinguish between layoff and termination of employment.

GOVERNMENT SITES

MINISTÈRE DE LA SANTÉ ET DES SERVICES SOCIAUX

Self-Care Guide - COVID-19

PUBLIC HEALTH AGENCY OF CANADA

Coronavirus disease (COVID-19): Outbreak update

WORLD HEALTH ORGANIZATION (WHO)

Coronavirus disease (COVID-19) situation reports

GOVERNMENT OF QUÉBEC

Coronavirus 2019 - Information to the population

ALLIANCE DES COMMUNAUTÉS CULTURELLES POUR L’ÉGALITÉ DE LA SANTÉ ET LES SERVICES SOCIAUX

The Facts about COVID-19 - Coronavirus 19

INSTITUT NATIONAL DE SANTÉ PUBLIQUE DU QUÉBEC