employee refusing to go back to work

Refusing To Go Back To Work? 

Before the COVID-19 pandemic, remote work was rare, and few employers would even consider it. Unexpectedly, remote work became the new norm for many industries and positions for over two years – the workplace 2.0. This created a new realm of possibilities and raised many new legal issues for workplaces. 

The government is now lifting some pandemic restrictions. Employers are requiring employees to return to the physical workplace at least a few days each week. Employers are also threatening employees with termination or job abandonment if they do not comply.  

If this describes you, you might be wondering: Can employers legally do that? Can employees refuse? What should I do? This article answers these important questions. 

Can I Legally Be Forced To Go Back To Work? 

Employers can usually require employees to come back to work as directed, commonly after a layoff. The employment relationship’s purpose is that an employee works for the employer in exchange for compensation. Typically, employees cannot perform their duties if they don’t attend the assigned workplace.

If an employee remains absent from work for an extended period, an employer may claim the employee abandoned their position. If an employer claims job abandonment after waiting a reasonable amount of time and warning the employee, they must come back to work; the employment relationship ends as if the employee resigned. This means the employer would not have to pay the employee severance. 

However, why an employee refuses to return to work is essential for an employer to claim job abandonment successfully. If an employee refuses to return to work because they claim constructive dismissal, the employer may still owe them severance

When Is A Back To Work Demand A Constructive Dismissal? 

A constructive dismissal is a termination without cause resulting from an employer forcing the employee out of the workplace or changing the terms of employment without the employee’s consent. 

If an employer or employee condones a change in the workplace, it may become a term of the employment agreement. This can include, but is not limited to, changes to the employee’s hours, position, pay, duties, and even geographic location.

A court may decide you working remotely is now a condition of your employment. It is a change to that new term if your employer demands you come back to work at a physical location afterwards. You may then have a constructive dismissal claim against your employer if you do not agree with that change.

It is also constructive dismissal if an employer is demanding you come back to work when they refuse to address a toxic work environment that directly impacts you or fails to adequately accommodate your Human Rights under the Ontario Human Rights Code. Employers cannot use bullying, harassment, and violations of the Code to force employees out of the workplace without paying them severance.  

There is a fine line between job abandonment and constructive dismissal. You need to know when and how to dispute your employer’s demand that you return to work. 

How To Respond To Your Employer 

Failing to respond to an employer’s back-to-work mandate could result in a job abandonment claim. You should respond in a way that provides you more time to determine your legal rights. 

As a general guideline, if your employer is demanding you return to work:

  1. Do not resign or threaten resignation. A voluntary resignation, like job abandonment, means you would no longer be entitled to severance. If your employer claims you abandoned your job, they must prove their case. Otherwise, it is a regular termination entitling you to severance. 
  2. Ask your employer in writing if they resolved the issue preventing your return to work. Your employer must be on notice when you are challenging their demand for your return to work and why. 
  3. Gather as many documents and written communications as you can. 
  4. Consult an experienced employment and litigation lawyer for guidance on your legal entitlements and next steps. 

Conclusion

Employers have the general right to demand that an employee come back to work and perform their duties. If the employee refuses without good reason, the employer may claim they abandoned their job and deny them severance. An employee may refuse to return to work by claiming constructive dismissal and seeking their severance entitlements. 

Any mutually agreed-upon changes to the employment relationship become new terms to the employment agreement. An employer changing those new terms without the employee’s consent could result in a constructive dismissal. 

If your employer is demanding you return to work, you need to respond in writing with reasons why you are refusing to return. You shouldn’t voluntarily resign and deny yourself a potential severance package. You should seek legal advice as soon as possible to determine best practices.  

We recommend booking a consultation with one of our employment and litigation lawyers at Achkar Law to determine your legal entitlements and the best next steps. We can help you negotiate or sue for your severance. 

Contact Us

Whether you are an employer or an employee needing assistance with returns to work, job abandonment or constructive dismissal, our team of experienced employment 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 will 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 legal advice and only provides general information. No portion or use of this blog will establish a lawyer-client relationship with the author or related party. Should you require legal advice, fill out the contact form, call (800) 771-7882 or email [email protected]