Howard Levitt: If I invest in the stock market and got laid off, can I still get Employment Insurance?

More workplace complexities that come with operating in a pandemic.

Can a company force its employee to work from home if the employee has no space or equipment at their residence, asked one anxious Ontario worker? To add to the twist, the office is open and deemed an essential service.

Such questions are becoming commonplace as companies and their employees navigate through the complex labyrinth of rules, preferences and business compulsions.

To answer that question, an employer has no right to require an employee to work from home if there is no government order and the employer remains open. Indeed, forcing employees who were working from the office to operate from home, or inversely, forcing employees contracted to work from home to come to the office is normally considered a constructive dismissal.

It is different if they are being asked to work from home because of the pandemic and the situation is considered inherently temporary. However, when offices reopen, an employee will be unable to insist on continuing to work from home, however productive they may have been, if the employer requires them to return to their usual places of business. Refusing to return will be abandoning their employment and cause for discharge.

Here are a few other questions I received over the past few weeks, that highlight the complexities of operating in a pandemic:

Q:If I invest in the stock market and got laid off, can I still get Employment Insurance?
A: Investment income is not income from business or employment for EI purposes. It might be argued otherwise if you were a professional trader.

Q:What can I do if my employer gets subsidized by the Feds, but still does not hire anybody?
A: The employer obtaining a wage subsidy creates no rights for employees as the matter is between the employer and the government. Obviously, if the employer obtains the subsidy and does not use that amount toward wages, that would be a fraud but, again, it does not provide an individual employee with any claim against the employer.

Q:I work for an essential business. Should I carry a letter when travelling to the office?
A: If you are permitted to work during the emergency period, some of my clients are providing letters to their workers so they can show proof if they are stopped by the police and asked about whether they are violating the shutdown order.

Q:One of my employees came back from maternity leave, but her role is no longer required. However, another new job has emerged, with the same pay and schedule. Do I have any requirement to provide the same job upon her return?

A: An employer is supposed to reinstate an employee to their role pre-maternity leave and cannot replace them with anyone else, including their maternity leave replacement. If that role genuinely no longer exists in the company, then they are required to reinstate them to a comparable position, at the same pay and working hours.

Q:My son was let go for ‘insubordination’ and not given any severance. Is this the same as ‘disobedience’ under the Employment Act?

A: The point is not the technical definition of the term, but whether there was sufficient wilful misconduct as to be cause for discharge and if sufficient warnings were provided. To answer your direct question, disobedience is defying an order and ‘insubordination’ is rudeness or provocative behaviour towards your superior.

Q:I am a contract worker who went on parental leave on April 2020 and was supposed to return to work in Feb. 2021. When I contacted my boss this week I was told there is no place for me as the temporary employee hired to cover me is staying on due to projects that were set up while I was away. It looks like I will not have my position at the end. Do I have any legal recourse or entitlements? I understand contract employees have very few rights.

A: If you were on parental leave, you are entitled to your position back upon your return and cannot be replaced by anyone else. The fact that you were on a contract is irrelevant. But if your contract had expired before your return, you have no right to return at all.

Q: I was offered a job through a placement agency and accepted it. After joining, I saw that my company was advertising the same job for more money. Can I claim the higher wage?

A: Short of being paid less money based on any of the grounds in the Human Rights Code, an employer can pay every employee doing precisely the same job a different wage for any reason or no reason, entirely arbitrarily. The fact that others are hired at or paid a higher wage, provides you no claim to one.

Q:My son is an auto mechanic in Ottawa and says his employer (a large autodealership) is keeping all its mechanics on the job even though they have little work due to the current lockdown imposed by the Government of Ontario. He has to stay at work for 10 hours daily but is only paid for about two hours because he is a flat-rate tech worker, i.e. he is paid for each job he performs rather than hourly. Is his employer allowed to do this?

A: He is paid by the job, not two or 10 hours so, unless that works out to less than the minimum wage of $14 an hour or $140 a shift (assuming a four-day, 10-hour a day schedule), he has no recourse.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.