The impact of the COVID-19 pandemic on dental professionals is something of great importance to TempStars. With many dental professionals out of work due to the closures of most dental offices across the country, our community has many questions.
To answer some of these questions from dentists, hygienists, assistants, and the entire community, our Founder Dr. James Younger hosted a live interview with employment lawyers Stuart Rudner and Nadia Zaman of Rudner Law. For those who missed the interview, you can watch it here:
Answering COVID-19 Questions for Dental Professionals
Now is the time to unite as an industry and support each other through these unprecedented times, and TempStars is hard at work to support our community of dental professionals. Dental hygienists, assistants, and dentists alike have come to us with questions during and since this interview with Rudner Law. We have compiled your questions and put together information and resources that may be helpful to you during these times.
It is important to note that we are not providing any specific legal advice, but simply providing information and resources based on the information provided during the interview. Every individual’s situation is unique and has various external factors such as provincial employment laws, employment status, and more – some of which are in an evolving state of flux – and circumstances may have changed since the time of the interview. If you have specific concerns pertaining to your employment situation and COVID-19, please consult an employment lawyer.
Here is a summary of the questions asked by viewers of the interview, with their corresponding answers, as outlined by Stuart and Nadia in the interview:
> What is the difference between CERB and EI, and who is eligible?
> What do I do if I have already applied for EI?
> Can I choose EI over CERB if I will make more with EI?
> If I was rejected for EI, am I able to apply for CERB?
> How will taking EI or CERB now affect maternity claims in the future?
> What happens if I am laid off and there is no work for 13 weeks? Can I still get EI beyond that?
> Will CERB back-pay me for the time I have been out of work?
> How long will EI take to pay? My application still says “under review”.
> Do I get paid by my employer or by Service Canada for the Wage Subsidy?
> Are employers receiving the Wage Subsidy obligated to pay the remaining 25 percent of my salary?
> Are employers receiving the Wage Subsidy obligated to pay wages for an employee’s regular hours?
> Does my employer need to provide me with an ROE if I am laid off?
> Is a loss of 25 percent of my hours when being recalled to work a constructive dismissal?
> If my dental practice is completely closed due to COVID-19, can I apply for the Wage Subsidy?
> What if my employer does not provide proper PPE upon returning?
> What if I am called back to work but I have no childcare options for my children?
> When I am recalled to work, can the employer change my working hours or days?
What is the difference between CERB and EI, and who is eligible?
CERB and EI are two different financial benefits offered to Canadians by the Federal Government. At this time, the Government is advising any individual who has stopped working because of COVID-19 to apply for the CERB, whether or not they are eligible for EI.
Employment Insurance (EI) provides benefits to individuals who lose their jobs through no fault of their own, but only applies to employees, not self-employed or independent contractors.
The Canadian Emergency Response Benefit (CERB) is intended to apply benefits to those who would not otherwise be eligible for EI, including but not limited to self-employed and independent contractors, whose income has been impacted by COVID-19. The Benefit is currently available for the period from March 15, 2020 to October 3, 2020.
Please visit the Government of Canada’s website to read further about CERB and EI.
What do I do if I have already applied for EI?
From the Government of Canada: “If you became eligible for Employment Insurance prior to March 15th, your claim will be processed under the pre-existing Employment Insurance rules. If you became eligible for EI regular or sickness benefits March 15th or onward, your claim will be automatically processed through the Canada Emergency Response Benefit.”
Can I choose EI over CERB if I will make more with EI?
No. If you applied for EI March 15th onward, the Government will automatically process your claim through the CERB.
More from the Government of Canada:
“When you apply for the Canada Emergency Response Benefit, you will receive $500 per week, regardless of what you may have been eligible to receive through Employment Insurance. However, you retain your eligibility to receive for Employment Insurance after you stop receiving the Canada Emergency Response Benefit, and the period that you received the CERB does not impact your EI entitlement.”
If I was rejected for EI, am I able to apply for CERB?
If you were rejected for EI, you may or may not be able to receive CERB. Please visit the Government of Canada website to read current updates regarding eligibility for CERB. The Government has updated eligibility to meet the ongoing needs of citizens impacted by the COVID-19 pandemic.
How will taking EI or CERB now affect maternity claims in the future?
Under normal circumstances, individuals who have received EI in the 52 weeks leading up to their maternity or parental benefits may not be eligible to receive the maximum number of weeks available for the claim. At this time, the EI maternity and parental benefits page on the Government of Canada’s website states an important notice that:
“If your child was born or placed with you for the purpose of adoption on or after March 17, 2019, and you share Employment Insurance parental benefits with another parent, you may be eligible for:
-5 extra weeks of standard parental benefits, or
-8 extra weeks of extended parental benefits”
For those currently on maternity/parental leave, the Government has stated: “It is expected that you will return to work when you are finished collecting maternity/parental or other special benefits under the Employment Insurance Program. If work is not available as a result of reasons related to COVID-19 upon conclusion of your maternity/parental leave, you may be eligible to apply for the Canada Emergency Response Benefit, provided you meet the eligibility requirements.”
If you are concerned about whether you are eligible to receive your anticipated maternity and parental benefits, please contact the Government of Canada and visit their website for more information.
What happens if I am laid off and there is no work for 13 weeks? Can I still get EI beyond that?
The Government of Canada has stated, “You retain eligibility to receive EI after you stop receiving the CERB, and the period that you received the CERB does not impact your EI entitlement.” More information will become available from the Government as time goes on.
Will CERB back-pay me for the time I have been out of work?
Yes. If you are eligible to receive the benefit, CERB payments will be retroactive to the date you became eligible.
How long will EI take to pay? My application still says “under review”.
If you applied for EI on March 15, 2020 or later, your claim will automatically be processed through the CERB. CERB payments will be received by applicants within 10 days of their application. For those who applied for EI before March 15, 2020, a similar timeline should be expected. If it has been more than 10 days since you have applied, contact the Government of Canada.
What if I have applied for EI, but then my employer ends up getting the Canada Emergency Wage Subsidy?
If your employer receives the Canada Emergency Wage Subsidy and subsequently calls you back from a temporary layoff or re-hires you, you will then be considered employed and may no longer be eligible for EI or CERB. If your income remains less than a certain amount, you may still be eligible to receive one of the benefits.
Please visit the Government of Canada’s website to read further about CERB and EI.
Do I get paid by my employer or by Service Canada for the Wage Subsidy?
If your employer has applied for and receives the Canada Emergency Wage Subsidy, the government will provide the subsidy to the employer and the employer will pay your salary directly to you.
Are employers receiving the Wage Subsidy obligated to pay the remaining 25 percent of my salary?
No. Employers are not obligated to pay the remaining 25 percent of your salary if they are receiving the Canada Emergency Wage Subsidy, but the Government has stated that employers receiving the subsidy “are expected where possible to maintain existing employees’ pre-crisis employment earnings.”
Are employers receiving the Wage Subsidy obligated to pay wages for an employee’s regular hours?
No. The Wage Subsidy does not require employers to pay staff based on their normal hours from before the pandemic, but the Government has stated that employers receiving the subsidy “are expected where possible to maintain existing employees’ pre-crisis employment earnings.”
For the best assessment of your rights, please contact an employment lawyer such as Rudner Law.
Does my employer need to provide me with an ROE if I am laid off?
Yes. Employers are required to provide employees with a Record of Employment (ROE) when there is an interruption in earnings. Employees who still have yet to receive the ROE from their employer can still apply for the CERB without the ROE.
Is a loss of 25 percent of my hours when being recalled to work a constructive dismissal?
Depending on the nature of your employment contract, there may or may not be a case for constructive dismissal. In Ontario, “A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.”
For the best assessment of your rights in this situation, please contact an employment lawyer such as Rudner Law.
If my dental practice is completely closed due to COVID-19, can I apply for the Wage Subsidy?
The Canada Emergency Wage Subsidy is available to help employers re-hire or continue to pay employees their wages by providing a 75% subsidy of wages (with limits). It is provided to employers who have staff on payroll, and as such, if your dental office is closed you must still be paying employees in order to receive the Subsidy. The subsidy is provided to help pay employee salaries up to 75%.
For more information on the eligibility criteria for the Wage Subsidy, please visit the web page through the Government of Canada.
If I can do my job from home, can my employer force me to come into the office and work during the pandemic? And if I refuse to go in, can they fire me?
From trusted Ontario employment lawyers, Rudner Law:
“In Ontario, employees are entitled to refuse work if they feel it is unsafe. If that happens, an employer is required to investigate the situation and advise the employee whether the safety risk has been resolved or not. If the employee continues to believe there is a safety concern, the Ministry of Labour can be asked to come in to investigate.
There must be reasonable and legitimate grounds for the employee to believe there is a safety risk in the workplace. A fear of getting sick, if there are no current incidents in the workplace or other risk factors, is likely not sufficient. However, in a situation where another employee has been diagnosed with COVID-19 or where the employee is interacting regularly with the public, there may be a legitimate concern that needs to be addressed by the employer to ensure the health and safety of all workers.
Employers should also be alert to the fact that some employees may have legitimate safety concerns as a result of their personal health or circumstances (for example, any employees who are immunocompromised). In these cases, the employer will likely have a duty to accommodate the employee up to the point of undue hardship.”
What if my employer does not provide proper PPE upon returning?
All dental practices in Ontario are required to comply with the Royal College of Dental Surgeons of Ontario (RCDSO)’s standards and required processes. This includes compliance with Public Health Ontario’s guidance for Infection Prevention and Control (IPAC) which outlines all protective measures, including Personal Protective Equipment (PPE) standards.
All employees, contractors, and temps should feel safe in the workplace.
If you have completed a shift through TempStars at a practice which you believe did not comply with RCDSO’s standards, please immediately contact us.
What if I am called back to work but I have no childcare options for my children?
From trusted Ontario employment lawyers, Rudner Law:
“Employers should never deny an employee’s request to work from home arbitrarily, as they may have a duty to accommodate the employee. Under the Code, employees are entitled to accommodation on the basis of family status up to the point of undue hardship. This may include allowing an employee with care-giving responsibilities the ability to stay home on an unpaid leave from the workplace. Employers can of course explore alternative options, including allowing employees to work remotely or to vary their hours to share caregiving responsibilities with other family members.
Employees who must remain at home to care for children or other relatives due to COVID-19 now have access to a job-protected leave of absence pursuant to the Ontario government’s amendments to the Employment Standards Act, 2000, as described above. This leave is identified as “Emergency leave: declared emergencies and infectious disease emergencies.”
When I am recalled to work, can the employer change my working hours or days?
Employers may or may not have the right to change your working hours when you are recalled to work, depending on the details of your employment contract. In some cases, changes to your employment terms including hours of work may be deemed constructive dismissal. In Ontario, “A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.”
For the best assessment of your rights, please contact an employment lawyer such as Rudner Law.
