Termination for Refusing to Return to Workteam
With many businesses beginning to resume operations and start to recall their employees back to work, there is some confusion as to the process of returning to work, as well as questions pertaining to refusals to return to work. A common question we get from employees is, can I be terminated if I refuse to return to work? The answer is, it depends – largely on the reason for your refusal to return to work. In some cases, employees may be terminated for refusing to return to work and for job abandonment, and in other cases, the employee may refuse to return to work due to a health and safety or human rights reason.
This article outlines a few common reasons why employees may refuse to return to work, if employees can be terminated for it, and what employers should know when it comes to handling refusals to return to work.
Health and Safety Concerns
Some employers are not engaging in conversation as to the reasons some employees may be refusing to return to work. Employees should expect from their employer to maintain and safe workplace where everyone is abiding by safety concerns. With masks and vaccinations being strongly recommended now for maintaining a safe workplace, some employees may feel unsafe in an environment where not everyone is in fact vaccinated.
If an employee has a valid concern as to the reason they are refusing to work, employers must do all that is reasonable to accommodate requirements and provide them with a safe workplace. This includes enforcing policies on all employees (but take into account Human Rights concerns and safety concerns) of all those involved. However, not all employees have valid concerns. An employee may not refuse to return to work because some remote employee in a different department refuses to be vaccinated.
Human Rights Concerns – Refusing to Return to Work
Employees have the right to work free from any type of discrimination, whether on the basis of disability, age, religion, gender, race, or any other prohibited ground found in Ontario’s Human Rights Code. When employers refuse to engage in conversation as to the reasons that an employee may be refusing to work, they may be risking discriminating against those employees, or failing to take reasonable steps to accommodate those employees.
Some employees may have a medical reason that does not permit them to obtain vaccination. Those employees must be accommodated in a way that safeguards the safety of other employees, while allowing the particular employees to continue working without being discriminated against.
However, not all employees have legitimate Human Rights Code reasons to be accommodated – and the requirement to be vaccinated and return to work may be fully legitimate and non-discriminatory – depending on the circumstances. Employees who unreasonably, or without any health and safety or human rights reason, refuse to return to work, can typically be terminated for refusing to return to work. In any case, employers should ensure they engage in conversation to determine the reason for an employee’s refusal to return to work, and ensure that they aren’t inadvertently discriminating against any employee who has a legitimate concern.
If in doubt, make sure you consult with an employment and Human Rights lawyer as to your rights and obligations.
If you are an employer and have questions pertaining to refusals to return to work, or an employee who has been discriminated against, our team of experienced workplace 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.
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