Williams HR Law LLP

April 27, 2020

This is the fifth bulletin in a weekly series that provides a recap of important COVID-19 developments and their impact on employers as they navigate these challenging times. This recap covers the week of April 20, 2020 and is current as of April 27, 2020.

During the week of April 20, 2020, the federal government partnered with the provincial and territorial governments, including the government of Ontario, to provide commercial rent relief to small businesses. Additionally, Ontario provided details on its previously announced “pandemic pay” for certain essential workers, which includes a wage top-up and monthly lump sum payments.

The federal government also announced new details with respect to the Canada Emergency Wage Subsidy (“CEWS”) and further support for charities and non-profits.

Ontario also announced last week that Emergency Orders under the Emergency Management and Civil Protection Act (“EMCPA”) are extended until May 6, 2020, schools will remain closed until at least May 31, 2020, and a framework for reopening Ontario’s economy would be released soon. Further, the Ontario government announced additional measures applicable to long-term care homes, mental health and addictions agencies, and other workplaces that serve vulnerable people, and further support for small businesses.

The key developments from this week, as well as their implications for employers, are set out below.

Emergency Commercial Rent Assistance

On April 24, 2020, Prime Minister Justin Trudeau announced that the federal government has reached agreements in principle with all the provinces and territories to provide commercial rent relief to small businesses impacted by COVID-19.

The Canada Emergency Commercial Rent Assistance (“CECRA”) would provide forgivable loans to commercial property owners who reduce rent payments for small businesses by at least 75% under a rent forgiveness agreement for April (retroactively), May, and June 2020. The landlords would also be required to commit to not evicting the tenant during the three months in which the rent forgiveness agreement is in place. The loans would be equal to 50% of the monthly rent payments in those months.

Eligible small business tenants would be those that pay commercial rent payments of up to $50,000 and have experienced a 70% or more drop in revenues as a result of COVID-19 (as compared to pre-COVID-19 revenues) or have temporarily ceased operating. The CECRA will also be available to non-profits and charities.

The Prime Minister also stated that the government will soon announce rent relief measures for larger businesses as well.

The Ontario-Canada Emergency Commercial Rent Assistance Program

On April 24, 2020, Ontario Premier Doug Ford announced that Ontario partnered with the federal government to deliver emergency commercial rent relief to small businesses in Ontario and their landlords, with $241 million in funding from the Province and $900 million in total funding. The benefits and eligibility requirements are the same as those set out under the CECRA.

Small businesses in Ontario that have been impacted by COVID-19 and that pay $50,000 or less of commercial rent per month should contact their landlord to determine whether they are willing to apply for the OCECRA and/or encourage them to do so. Under the program, the commercial tenant and landlord would each cover 25% of the rent payment, while the provincial and federal government would cover 50% (12.5% and 37.5% respectively). Taking this proactive step could provide much needed financial relief to small businesses during this challenging time by reducing the rent that they must pay, which would help them remain viable and keep employees on the payroll.

Pandemic Pay for Essential Workers in Ontario

 On April 25, 2020, Ontario announced that it will be providing a temporary pandemic pay top-up of $4 per hour to eligible front-line workers fighting the COVID-19 pandemic, as well as a monthly lump sum of $250 for four months to eligible workers who work more than 100 hours per month.

The pandemic pay will be available for 16 weeks, from April 24, 2020 until August 13, 2020. Only “eligible workers” who work in “eligible workplaces” will be eligible to receive pandemic pay. Managerial employees will not be eligible for this top-up.

The government has released an official list of workplaces and workers that will be eligible for pandemic pay. The sectors that include workplaces that may be eligible include:

  • health care and long-term care;
  • social services; and
  • corrections.

Some examples of eligible workers include:

  • registered nurses;
  • personal support workers;
  • social workers;
  • maintenance staff;
  • administration personnel; and
  • correctional officers.

The pandemic pay represents Ontario’s plan to top up wages with funds provided by the federal government to ensure a wage top-up for essential workers. The federal government has stated it is still in discussions with other provinces and territories to get their plans in place.

This top-up is great news for employers operating eligible workplaces and their eligible workers. Employers that have employees who may be eligible for pandemic pay should promptly consult the official list to determine whether their staff will be eligible. Employers with workers who will eligible for pandemic pay should clearly communicate this new benefit to these workers to encourage attendance. Additionally, this new benefit (along with the recognition it represents of how important the work performed by essential workers is) will provide workers with a morale boost at a time when it is truly needed, as essential workers have been performing difficult and dangerous work for weeks.

 New Details on the Canada Emergency Wage Subsidy

On April 27, 2020 applications for the CEWS opened on the Canada Revenue Agency’s (“CRA”) website. Since the portal opened at 6:00am, more than 10,000 applications had been made by 11:15am.

The government expects that 90% of CEWS applications will be processed by May 5, 2020, and that direct deposits and cheques will be sent out to eligible businesses beginning on May 7, 2020.

The government also launched a new calculator tool on the CRA’s website on April 21, 2020 that will help employers that plan on applying for the CEWS know what they can expect to receive based on their specific circumstances.

The CEWS payments are among the most significant supports available for employers navigating the impact that the COVID-19 pandemic has had on their workplaces. As this money becomes available, employers will be better positioned to assess the state of their businesses, and determine next steps, such as whether they can continue to pay staff, or whether they may be recalling employees who are currently laid off.

Ontario Emergency Orders Extended

On April 23, 2020, Ontario extended the Emergency Orders that it has put in place in response to the COVID-19 pandemic under s.7.0.2(4) of the EMCPA until May 6, 2020. This includes the mandatory closure of all non-essential workplaces.

Although the province may and likely will extend the Emergency Orders again, employers with non-essential workplaces that have not already done so should begin developing appropriate measures to protect the health and safety of their employees for when their workplaces reopen, in order to meet their obligations under the Occupational Health and Safety Act.

 Ontario School Closures Extended

 On April 26, 2020, Ontario announced that all publicly funded schools in the province will remain closed until at least May 31, 2020. The government also hinted that it may not extend the school year into the summer, despite the lengthy closures.

Therefore, Ontario employers should bear in mind that employees with children will likely continue to have to balance their duties as employees and as parents during school hours until at least May 31, 2020. This reality may require accommodation under the Ontario Human Rights Code, and may entitle employees to take (or continue to take) the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies under the Employment Standards Act, 2000, which specifically contemplates a job-protected leave for employees needing to care for children as a result of school or day care closures..

Additionally, employers operating daycares situated within publicly funded schools will likely be required to remain closed until at least May 31, 2020, although the government has not addressed this point specifically.

 Looking Forward: Framework for Reopening the Ontario Economy

On April 24, 2020, Premier Ford also stated that Ontario will be releasing a framework for reopening Ontario’s economy early in the week of April 27, 2020, that will involve a gradual and measured approach.

The government released the three-stage framework for reopening Ontario’s economy early in the afternoon on April 27, 2020, which will be of interest to all employers in the province. The government stated that the framework is a roadmap, not a calendar, and that dates for the implementation of the different stages will not be assigned until the time is appropriate based on the advice of medical experts. For more details about the framework visit our Resource Centre.

Further Support for Charities and Non-Profits: The Emergency Community Support Fund

On April 21, 2020, the federal government announced that it is setting up a $350 million Emergency Community Support Fund (“ECSF”) for charities and non-profits, so that these organizations can continue to support vulnerable people in local communities during the COVID-19 pandemic. The ECSF is intended to address increased costs faced by non-profits and charities as a result of factors including having to obtain and supply personal protective equipment to staff, staff shortages as a result of COVID-19 and decreased donations given the economic impact of the pandemic.

A portion of these funds will be given directly to smaller front-line organizations and the remainder will flow through national organizations like United Way Centraide Canada, Community Foundations of Canada, and the Canadian Red Cross. These funds are intended for things like training volunteers, increasing home deliveries of essential items to seniors, and transporting people with disabilities to appointments.

The government stated that charities and non-profits receiving funding from the ECSF will not become ineligible for the CEWS. Consequently, employers operating a non-profit or charity that are struggling financially should strongly consider seeking funding from the ECSF. Doing so will help such employers continue to pay employees, which in turn will help allow them to continue serving vulnerable people in local communities during the COVID-19 pandemic.

Measures Affecting Ontario’s Long-Term Care Homes

 On April 22, 2020, Ontario announced that it would make a formal request to the federal government for help to stop the spread of COVID-19 in Ontario’s long-term care (“LTC”) homes, including personnel and other supports from Health Canada, the Public Health Agency of Canada, and the Canadian Armed Forces.

Accordingly, employers operating LTC homes that are struggling to deal with the COVID-19 pandemic can expect further aid, including personnel to help with staffing shortages.

 Measures Affecting Ontario Mental Health Care and Addictions Service Agencies

On April 22, 2020, Ontario also issued an Emergency Order under the EMCPA to provide greater flexibility to employers that provide community mental health care and addiction services in Ontario (“Mental Health and Addictions Agencies”) during the COVID-19 pandemic.

Broadly, this order allows Mental Health and Addictions Agencies to take “any reasonably necessary measure” with respect to staffing and worker deployment to respond to the COVID-19 pandemic and its consequences.

In particular, the order allows Mental Health and Addictions Agencies to do the following, even if a contract, policy, law, order, or applicable collective agreement would normally prohibit it:

  • redeploy staff to different locations or facilities;
  • change work assignments, including allowing non-bargaining unit workers to perform bargaining unit work;
  • change workers’ schedules and shifts;
  • cancel or defer workers’ vacations, absences or other leaves, despite the same being established by statute, regulation, agreement or otherwise;
  • employ additional staff, including part-time or temporary workers and contractors, to do work, including bargaining unit work;
  • allow volunteers to perform work, including bargaining unit work;
  • require staff to complete “skills and experience inventories” to identify possibilities for redeployment to priority areas;
  • provide appropriate training and education to workers and volunteers for the purposes of redeployment;
  • require staff, contractors, and volunteers to provide information regarding their availability to work, their likely or actual exposure to COVID-19, and any other health conditions that may impact their ability to provide services; and
  • suspend any grievances regarding any matter covered by this order for the duration of the emergency.

Therefore, employers operating Mental Health and Addictions Agencies in Ontario now have far greater flexibility to redeploy and reassign staff to where they are most needed for responding this crisis. That said, such employers should bear in mind that such changes must only be made where they are reasonably necessary for responding to the COVID-19 pandemic or its consequences.

 The Ontario COVID-19 Action Plan for Vulnerable People

Ontario also announced the Ontario COVID-19 Action Plan for Vulnerable People (the “Plan”) on April 23, 2020, which will be of interest to employers providing social services to vulnerable populations, including people with developmental disabilities, shelters for survivors of gender-based violence and human trafficking, children’s residential settings, and residential settings supporting vulnerable Indigenous individuals (“Congregate Care Settings”).

The Plan includes:

  • enhanced screening of visitors, staff, and residents;
  • restricting non-essential visitors;
  • providing personal protective equipment (“PPE”) and PPE training to staff in congregate care settings;
  • enhanced testing of symptomatic individuals;
  • plans to limit staff from working at more than one congregate care setting;
  • providing additional training and support to congregate care settings dealing with an outbreak; and
  • helping organizations in high-risk settings achieve workforce stability and staffing levels.

Thus, employers operating Congregate Care Settings should avail themselves of additional assistance under the plan, if they need it, and should assess whether any of their employees also work in another Congregate Care Setting. Employers whose employees work in other Congregate Care Settings should promptly consider how they will maintain staffing levels if the government limits employees from working at more than one Congregate Care Setting, and should seek assistance under the Plan as appropriate.

Ontario has also suspended time-of-use electricity rates for eligible small businesses

 On April 24, 2020, Ontario suspended time-of-use electricity rates for eligible small businesses, such that they will be subject to the off-peak rate of 10.1 cents-per-kilowatt-hour at all times for 45 days.

Small business owners, particularly those with substantial energy costs, should consider how these savings, combined with the other financial measures announced to help employers navigate the COVID-19 pandemic, may impact their business continuity plans with respect to how they will operate during the pandemic and once restrictions begin lifting.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.