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COVID-19’s Effect on Reasonable Notice of Termination

COVID-19 is having significant economic impacts on both employees and employers. Mass layoffs are happening across Canada despite government initiatives to avoid them. Many employers are considering staff cuts to remain profitable. While terminating employment for legitimate business reasons (such as a downturn in the economy) is lawful, generally speaking, an employee terminated in these circumstances is entitled to reasonable notice of termination, or pay in lieu of notice.

What is Reasonable Notice?

Courts require employers to give terminated employees “reasonable notice” or pay in lieu of notice upon termination.  Such notice is based on a variety of factors to assist the employee in finding comparable employment.

In doing so, the courts consider the following criteria:

  1. The character of employment. For example, general labourer, middle manager, executive, professional, technical worker, etc.
  2. The length of the employee’s service. Employees are generally entitled to a longer notice period the longer they have been employed.
  3. The employee’s age. Employees close to retirement are generally entitled to a longer notice period.
  4. The availability of comparable employment.

For more information in general see my earlier article “How much notice/severance should I get after being fired?“.

Reasonable Notice in a Poor Economy

The state of the economy can influence the availability of comparable employment and, in turn, can likewise affect the length of reasonable notice awarded by courts.

There are arguments on all sides as to how a general economic downturn should affect the reasonable notice period. Employees argue that it should be increased because they may have more difficulty finding new employment when jobs are scarce. Employers argue that they do not have the financial resources to provide employees with a longer notice period, and the pay and benefits that go with it.

Generally, courts in Ontario have favoured employees:

  • They have often sided with employees that an economic downturn should extend the notice period. For example, in Zoldowski v Strongco Corporation (“Zoldowski”), the Court increased the notice period in part because of the “economic climate of Southern Ontario and particularly the GTA”, and its impact on the employee’s ability to find alternative employment.
  • They have rejected the idea that a specific employer’s economic difficulties are a basis for reducing the reasonable notice period. In Michela v. St. Thomas of Villanova Catholic School (“Michela”), the Court of Appeal rejected this argument, reasoning that the “character of employment” factor was about the nature of the employee’s position, not the employer’s finances. While those finances may be the reason for the termination, “they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

Nevertheless, COVID-19 may have a Different Affect on Reasonable Notice

Despite its decision in Michela, the Court of Appeal left open the possibility that a more general economic crisis may limit the reasonable notice period by approving and referencing the following passage in a 1982 High Court decision, Bohemier v. Storwal International Inc. (“Bohemier”):

It seems to me that when employment is unavailable due to general economic conditions, there has to be some limit on the period of notice to be given to discharged employees even if they are unable to secure similar employment within the notice period.

The reasoning in Bohemier suggests that, where there is a general economic downturn, evidence of difficulty finding a job cannot be used to extend a notice period as was done in Zoldowski. Employers may still have to provide a lengthy notice period based on the other factors, but not one that is unreasonable in the circumstances of the broader economy.

As a result, it is unclear how the general economic conditions created by COVID-19 will affect the reasonable notice period.

While employers ordinarily have difficulty relying on their financial hardship to reduce an employee’s notice period, COVID-19 is posing new legal challenges and how the law may evolve in the face of them is uncertain.

What is certain, however, is that we have entered unprecedented times. As always, we recommend that employers avoid premature layoffs or terminations without first seeking legal advice and understanding the consequences of those decisions.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

What Employees Need to Know About COVID-19

The World Health Organization officially declared the spread of COVID-19 to be a worldwide pandemic on March 11, 2020.  The impacts of this spread are already being felt by Canadians, and they are sure to get worse before they get better. Workers should be aware of their rights and obligations in the coming months. This short primer provides an overview of some of those rights and obligations. Every employee’s situation is different and these suggestions are not provided as or a substitute for legal advice.

All Ontarians should stay informed: Government of Canada’s Response to COVID-19

I’m infected but I can’t afford not to work. What should I do?

While anyone who is infected or thinks they are infected should immediately quarantine themselves to prevent the spread of the disease, the harsh reality is that many people cannot afford to take even one day off from work if they are going to make ends meet. Employees in this position have several options open to them:

  • Figure out if you are entitled to leave under the Employment Standards Act (“ESA”). Many workers in Ontario are entitled to a variety of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, sick leave, and family responsibility leave. Each leave is only available if the worker is provincially regulated and if they meet specific eligibility criteria set out in the ESA. Moreover, while various leaves might be available to the same person, statutory leaves are not necessarily paid and can sometimes offset employer-provided benefits. Workers should also keep in mind that employers may be able to request evidence to substantiate their eligibility for certain leaves.
  • Review your contract of employment and/or your employer’s policies for entitlements to sick leave or other leaves of absence. While many statutory leaves do not require employers to pay employees, some employers offer benefits beyond those guaranteed in the ESA. Many employers are also implementing special policies to address COVID-19, which may provide for enhanced benefits. Employees should check with their employers to see if they are being offered additional sick leave entitlements or alternative work arrangements, such as more generous policies on the ability to work from home. Again, keep in mind that these benefits may offset against ESA benefits and employers could likely ask for evidence to substantiate eligibility for certain entitlements.
  • Consider applying for employment insurance. Workers who are unable to work due to infection by COVID-19 may also be eligible for security benefits from various government programs. For example, on March 11, 2020, the federal government announced that it is waiving the one-week waiting period for Employment Insurance for employees quarantined, or directed to quarantine themselves, because of COVID-19. Some employees in Ontario might also be eligible for workers’ compensation through the Workplace Safety and Insurance Board, depending on the risks associated with their work and how they became infected, among other things.

If you need more information about Employment Insurance (EI) you can read the earlier article on “the Basics of Employment Insurance (EI)“.

Can my employer make me stay home if they think I have COVID-19?

Probably not, but this depends on why they think you’re infected and on the nature of your workplace. Employees in Ontario are protected by human rights legislation, such as the Ontario Human Rights Code (“Code”). Among other things, the Code prohibits discrimination in employment on the basis of disability, ethnic origin, place of origin, race, and family status. Diseases, such as COVID-19, engage the protected ground of disability because it covers medical conditions that carry significant social stigma. This protection also extends to a perceived disability or medical condition, meaning it may still be a violation of the Code if an employer discriminates against a worker they think is infected even if the worker is perfectly healthy. The Code may also be breached where employers discriminate against individuals or communities because of an association, perceived or otherwise, with COVID-19, for example because the individual is originally from or has travelled through regions that are believed to be suffering more greatly from the spread of the disease.

Someone in my family is infected and I need to care for them or others now that they are quarantined. Do I get time off from work to do so?

Maybe. As noted above, employees in Ontario are entitled to a range of statutory leaves, including family medical leave, family caregiver leave, critical illness leave, and family responsibility leave. These may be accessible to workers needing time off to take up family responsibilities during the COVID-19 pandemic. In addition, in certain circumstances, denying a person time off to care for family members may amount to a breach of the Code on the basis of family status. Note, though, that not every caregiver situation will fall into that category. While employers are expected to make reasonable efforts to accommodate legitimate family responsibilities, employees are equally expected to cooperate with that accommodation process and, if possible, to make alternative arrangements to avoid absenteeism.

Do I have to tell my employer that I’m infected with COVID-19 or that I think I’m infected? Can my employer ask me if I’ve been tested? Can they ask me for my results?

If you are infected or think you are infected, then every effort should be made to stay quarantined and seek appropriate medical care. But equally important to getting yourself healthy is avoiding the spread of the disease to others. Disclosing your condition to access the benefits and protections discussed above is a key way to go about doing this. Moreover, keep in mind that most employers will welcome knowing that their staff are infected to ensure proper accommodation and workplace safety. Further, as noted above, sanctions against employees for disclosing their infection would very likely amount to a breach of the Code.

That being said, there is no general duty requiring employees to disclose their illnesses to their employers, and employers cannot generally inquire about that sort of information. Employees do have obligations when it comes to their own accommodation in the workplace, however, and employers will probably have policies in place providing for a highly confidential disclosure process to facilitate accommodation pursuant to employer obligations under the Code.

At the same time, employees should note that employers do have statutory obligations to ensure workplace safety. The ongoing spread of COVID-19, along with increasing infection rates and associated health risks, may eventually necessitate a more proactive approach by employers. This may include, among other things, inquiries about whether employees are infected. Of course, any steps taken by an employer in this respect, along with any answers given by an employee, would be subject to privacy legislation and would have to be reasonable and tailored to the circumstances.

Can I wear a mask to work?

Right now, probably not. Healthy individuals cannot really reduce their risk of infection by wearing a face mask, and there are currently no government recommendations that people do so. As a result, whether employees are permitted to wear a mask at work will depend on the workplace and the type of work being done. Employees working in the health sector, for example, may have a more reasonable basis to wear a mask because they are more likely to be exposed to infected individuals, or they may be more likely to spread the infection to people who are immunocompromised. In comparison, employees working in less dangerous workplaces that are oriented to customer service, for example in the retail industry, do not share the same risks and therefore do not share the same need for protection. In each case, employers will need to weigh their legitimate business needs against the reasonableness of each individual employee’s request. The reasonableness of the request may also change as the disease continues to spread.


Contact Will McLennan

Contact Will McLennan, the author of this article, about any employment law related questions or issues you may be facing. Call 416-304-6528 or email him at wmclennan@btlegal.ca.

Will is an Associate of the Employment Group at BT Legal. In this role, he advises on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiations, arbitrations, wrongful dismissals, breach of contract, breach of fiduciary duty, and human rights.

Before joining BT Legal, Will articled and worked as an associate at an employment firm in Toronto where he assisted employer clients in formulating practical solutions for a wide variety of workplace-related issues.

Will was called to the bar in 2018, after earning a J.D. from Schulich School of Law. Prior to attending Law School, Will obtained his Honours Bachelor of Political Science and Philosophy from McGill University.

Photograph of Will McLennan, Author of COVID-19 Article.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.