Employers looking to reopen must first turn their minds to recalling employees from their temporary lay-offs.
When must I do it?
Lay-offs are governed by the Employment Standards Act, 2000 and can generally only last 13 weeks. In cases where the employer continues to make substantial payments during the layoff (EI top-up, healthcare benefits, other significant fringe benefits), the lay-off can last as long as 35 weeks. Depending on the circumstances, a lay-off longer than these maximum timelines will usually trigger a termination, entitling the employees to pay in lieu of notice automatically.
How do I do it?
In writing. Employers should carefully document recalling employees to work. While there is nothing wrong with phone call, it should be followed up in writing setting out the employee’s expected date of recall.
Do I have to bring back everyone all at once?
No. Recalls can roll out depending on business needs. Employers must be careful not to discriminate based on protected grounds (age, sex, race, place of origin etc.) when deciding who and when to call employees back.
What if my employees do not want to come back because they do not think it is safe?
Under Ontario’s Occupational Health and Safety Act, employers are required to:
- Take reasonable steps to protect employees in the workplace. This is not a one-size-fits-all, but must be designed to take into consideration the nature of the work and the likelihood of the hazard.
- Communicate any workplace hazards to its employees; and
- Train their employees on how to mitigate risks of workplace hazards.
The employer’s precautions depend largely on the likelihood of COVID-19 transmission in the workplace. Such precautions may include keeping the workplace clean and sanitary, providing employees with sanitary wipes and sanitizer and instructions on proper hand washing and social distancing. In a healthcare setting with increased risks, the precautionary measures may be more rigorous.
Provided that reasonable precautions have been taken to make the workplace safe by reducing the likelihood of COVID-19 transmission, the employer has complied with its health and safety obligations. The Occupational Health and Safety Act allows employees to refuse to work if they REASONABLY believe that the work is dangerous. It is not enough for an employee merely to FEEL unsafe. That belief must be a reasonable one, based on the real risks of exposure to the virus in that particular workplace.
If employees refuse to return, employers are within their rights to request a Ministry of Labour health inspection and report. This report can in turn be sent to employees. If the employees persist in their refusal, there may be grounds for the employer to assert job abandonment.
What if my employees have medical issues preventing their return?
This is Code-protected accommodation like any other. Employers are within their rights to require appropriate medical documentation proving their inability to return to work on medical grounds.
This blog post was written by Nigel McKechnie, a member of our Employment Law team. Nigel can be reached at 613-369-0382 or at nigel.mckechnie@mannlawyers.com.
