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Is Common Law Reasonable Notice Affected By COVID-19?

Where an employee is terminated without cause and is entitled to common law reasonable notice, courts will calculate the employee’s owed notice period or pay in lieu by examining factors to determine how long the employee may reasonably take to secure comparable alternative employment. 

The COVID-19 pandemic had an undeniable impact on all facets of life around the world. While employment law struggles with many questions relating to the pandemic, one of the outstanding issues is whether COVID-19 affects terminated employees’ ability to find alternative comparable work and therefore the reasonable notice they may be entitled to. 

Like many other legal questions, the answer depends entirely on the individual terminated employee’s circumstances. Described below are some ways COVID-19 can affect an employee’s entitlement to common law reasonable notice.

What Is The Economic Impact Of Common Law Reasonable Notice?

Courts consider the state of the labour market when determining the employee’s common law reasonable notice period. Where there is economic hardship for everyone or for a specific industry, a longer notice period may be awarded to account for the employee’s increased difficulty to find a job comparable to the one they were dismissed from.  

COVID-19’s impact on the global economy is wide-ranging, but not all industries suffered at all points during the pandemic. For example, an employee terminated from a restaurant service position during pandemic lockdowns will likely be awarded more reasonable notice if all other restaurants were closed and therefore not hiring for a given period. 

However, if that same employee is terminated and restaurants reopen shortly afterwards after lockdowns were lifted, they may have far less difficulty finding a similar job and may be awarded a shorter reasonable notice period.   

Many industries boomed during the pandemic overall, creating a greater demand for labour. For example, delivery drivers and cleaners who were terminated during the pandemic would likely have much less difficulty securing alternative employment as the demand for their services soared for most, if not all, of the pandemic. 

Common Law Reasonable Notice: What Is The Impact On Health?

If an employee contracts COVID-19 and has long-lasting medical effects from the disease, it could result in a disability that makes it more difficult to find comparable employment when terminated. Statistically, employees with disabilities face greater stigma and difficulties securing employment and may be eligible for common law reasonable notice.

While termination and hiring in connection disabilities raise Human Rights considerations as well, an employee’s disability could foreseeably lengthen how long it takes them to find a comparable job to the one they lost, and ultimately warrant a longer notice period.  In this way, COVID-19 could impact an employee’s ability to find work based on the long-lasting health effects the employee suffers due to COVID-19.

Other Issues Relating To COVID-19

There are other ways the COVID-19 pandemic and related issues can cause increased difficulty for an employee to find comparable and alternative employment. For example, if an employee was terminated from their old position due to their non-vaccinated status and most new job positions require proof of vaccination, employees absent Human Rights considerations, the employee could be awarded a longer length of common law reasonable notice.

However, in considering other factors relating to COVID-19 for determining reasonable notice, courts will be examining whether those factors are more likely an employee’s personal preference or are reasonably outside the employee’s control. An employee with a documented medical condition preventing them from receiving the COVID-19 vaccine is more likely to be awarded a longer notice period than an employee who makes the personal choice to not be vaccinated. 

While there is debate about COVID-19 related issues such as the efficacy of the vaccines and an employee’s right to medical autonomy and privacy, a court will need strong evidence to substantiate the employee’s position that a particular COVID issue impacting their job search efforts is a reasonable consideration warranting additional reasonable notice. 

When Should I Consult An Employment Lawyer?

If you feel that you are eligible for common law reasonable notice, it is important to seek legal advice as soon as they feel an employment problem occurs or where they feel there is some doubt about their rights and entitlements. There is no wrong time to seek a consultation to determine legal rights and confirm best practices moving forward. 

Contact Us

Whether you are an employer or an employee looking for assistance with your workplace issues, disputes or employment relationships, our team of experienced wrongful termination and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.

Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]