Editor’s note: The Star received an overwhelming number of questions so we invited employment and labour lawyer Hermie Abraham to join us Monday, Mar. 30 at 12 p.m. ET to continue the conversation.

Toronto employment lawyer Soma Ray-Ellis, who is also the Chair of the Employment and Labour Group at Gardiner Roberts, joined the Star Friday to answer reader questions about EI eligbility and workers’ rights amid the COVID-19 pandemic.

We’ve put together a breakdown from her reader Q&A which touches on who is eligible for the Canadian Emergency Response Benefit (CERB), inquiries about employee wage cuts and if international students can receive benefits.

From Colleen: My grandson is considered to be included in the vulnerable sector due to a compromised immune system. His job involves working in a high traffic area, touching metal surfaces. They say they are unable to provide an alternate work environment and have only offered gloves and a mask. He does not feel that provides enough protection. They have said he can take an unpaid leave or use his vacation time which is only two weeks. If he does opt for unpaid leave will he qualify for Federal support? What are his rights?

A: CERB (federal support) applies to a broad group of workers including those who have: lost their job, are sick, quarantined, taking care of a loved one who is sick with COVID-19, working parents who are home as a result of school or day care closures, workers who have lost their income as a result of COVID-19.

Employees such as your grandson who are afraid to work for health reasons should ask and agree to a layoff for a specific period of time, preferably for 13 weeks or less with benefits if possible. They will then qualify for CERB.

From Joe: I am a full-time salaried employee that has been with the company for 11 years. My employer stated everyone in Canada and USA will get a 20 per cent pay cut until this pandemic is over. Is this legal/allowed?

A: Normally, a 15 per cent compensation reduction is considered constructive dismissal but this pandemic with it’s global shutdown is not a normal occurrence. I am concerned about lawyers who are suggesting that employees who are temporarily being laid off or facing reduced income are being terminated and are immediately entitled to severance for the following reasons:

some companies have been deemed non essential and cannot work remotely and have been shut down —the Ontario government has said you cannot terminate anyone because of COVID-19-related reasons and therefore wage reductions and layoffs are the only method of staying alive if those companies do not qualify for the federal government’s wage subsidy program and have reduced demand for their goods and services

even the courts are largely shut down; I think it will be difficult to guarantee any employee a win for a severance payment with a 20 per cent reduction during this emergency period as long as they are not working in any of the limited industries and companies that are booming

From Terry: I have a question from the employer perspective. Are we able to top up CERB payments for our employees?

A: We don’t know for sure if top ups by employers are allowed under CERB but it looks unlikely because one of the qualifications for CERB is that an employee not receive any “income.”

From James: I work for a car manufacturer north of Toronto. We are currently off work until April 7, because of a slow down in market demand. We are going to receive full pay for nine of the 12 days we are off. However the company posted options upon out return to cover the three days we aren’t compensated for. First you can use a holiday to cover those non-paid days. Second use any lieu days if you have any. Third you can take those days without pay. My thoughts are these are unprecedented times since the Ontario government has declared a state of emergency. Due to that could we not claim unemployment insurance for those non production days. It’s not a lay-off though. Just wondered if you could clarify our legal options? Not what the companies parameters have dictated.

A: You are likely unionized and all unionized employees should look at their Collective Agreement and check with their union representative.

From Seito: I’m currently employed as a full-time project manager and have a side-gig as an academic tutor. I was informed by my full-time employer that effective today I would be temporarily laid off due to the COVID19 pandemic and I’m curious to know the following:

A) Am I eligible to collect under the CERB, even if I retain my side gig?

B) Considering that the CERB provides relief for up to a 4 month period (16 weeks), and per Ontario legislation, temporary unemployment may only last for up to 13 weeks thereafter you are considered officially terminated. When would CERB end and EI kick in?

Loading... Loading... Loading... Loading... Loading... Loading...

A: To be eligible for CERB, you have to be in the no work and no pay situation for 14 days since March 15, 2020. If anyone keeps a part time job, they will not qualify for CERB. In Ontario, you can be temporarily laid off for under 35 weeks if the employer pays benefits and 13 weeks if there is no benefit. Neither CERB or EI has any waiting period right now. If you are in another province check the rules with the Ministry of Labour.

From Lois: I have applied for EI but my earnings are quite low. I am sure my EI monthly benefit will be far below the $2,000 per month promised in the CERB. Should I apply for this as well or will the government top up EI benefits for those whose benefits are below the $2,000 per month threshold?

A: There is no indication right now that the Government will top up EI to match the CERB $2,000 monthly amount. It might change but we do not know. The rules regarding CERB states you cannot get CERB and EI. So CERB cannot be used as a top up to EI.

From Colleen: Will the CERB program have the 55 per cent rule like EI does?

A: Everyone is wondering if CERB will be indexed or scaled to income to a maximum amount.The regulations to CERB may state a similar maximum 55 per cent of your income to a maximum of yearly insurable earnings of $54,200 EI rule, but as of right now it appears to be a flat $2000 monthly for up to a four-month period as long as you otherwise qualify. What we do know is that the CERB payments will be taxed.

From Mai: I am an international student. I have worked at the same workplace for more than two years. I got laid off last week. On the government website, eligible claimants are those who have immigrant’s status and have work permit. Does it include student visa as well?

A: CERB applies to any resident of Canada who is 15 years old and has earned at least $5000 from: employment, self-employment, EI maternity benefits or EI parental benefits. You should apply.

From Michelle: I’m a designer and was in the process of interviewing and almost getting a full-time job until the company decided to go on a hiring freeze in the midst of COVID-19. Now I’m self-employed and doing projects here and there which barely make rent. Wondering if there are any benefits for freelancers right now?

A: Self-employed workers can get CERB payments for up to 4 months but cannot earn any income for the period you are applying for.

From Robert: Is it better to wait for the CERB or try to get EI right away? I work at a minimum wage serving job. So I am sure my EI payout will be less CERB.

A: Anyone who has applied for EI will get EI. Anyone applying now and therefore not processed yet is likely to be paid under CERB.

From Diana: Hi, I worked as a nanny for the same family for seven years. They told me this week it would be my last week. They said that they might call me back to work when this is all over but I can look for other work if I want. I asked for my three weeks vacation pay, but she will not give it to me. Question. Does she owe me severance pay, should she not give me two weeks’ notice with pay, what other options do I have? This is happening to many nannies that I know. We paid into EI, taxes, etc. I am assuming we are all eligible for the CERB help.

A: Nannies like all workers cannot be laid off indefinitely because that is a termination even if the employment contract says lay offs are allowed. In Ontario, under the Employment Standards regime, a worker is entitled to one week of notice or pay in lieu of notice for each year worked up to a maximum of eight weeks. If the employer has a payroll of $2.5 million or there is a mass lay off other rules apply. Generally, employees get another week of severance pay if they have worked for five years and the employer has a payroll of $2.5 million up to 26 weeks of pay. Check with the Ministry of Labour in other provinces to see about entitlements. Complaints for ESA payments are made with the Ministry of Labour. However, employees can sue in the courts for a lot more under the common law if they have been terminated or laid off indefinitely.

Read more about: