The Case of Non-Returning Employees
With businesses slowly resuming operations, employers are beginning to send out recall notices to employees who were temporarily laid off due to COVID-19, and our finding that they have non-returning employees, or employees are refusing to return to work.
The process of recalling is typically dictated by employment standards, company policy, and in unionized environments, the collective agreement.
For provincially regulated businesses, employees are expected to return to work after being recalled “within a reasonable amount of time” or pursuant to a workplace recall policy. For federal businesses, a workplace recall policy must be followed first unless there is no policy, the standard for which is also “within a reasonable amount of time”.
Refusal to Return to Work in Ontario Due to Health and Safety Concerns
Sometimes, employees may refuse to attend work or perform certain duties due to a reasonable belief of risk to their health and safety. The onus typically rests on the employee to prove that were legitimate reasons for feeling unsafe.
Once an employee refuses to attend work to a health and safety concern, employers must take reasonable steps to investigate and find the remedy to eliminate or reduce the hazard. After investigation, the decision should be communicated to the employees and any necessary action to remove the hazard must be implemented. When relating specifically to COVID-19, employers may consider providing necessary protective equipment such as masks, gloves, and sanitizers, regularly disinfecting surfaces and common areas, and structuring the physical space in a way that ensures social distancing between employees.
Refusal to Work Due to Illness Or Childcare Responsibilities
If the employee refuses to return to work due to an illness or child care responsibilities stemming from closed schools and childcare services, then the employee entitled to statutory leaves of absence.
If the employer dismisses the employee based on child-care responsibilities, this will likely open up the employer to liability under either the provincial or federal human rights legislation.
Employers should consider reviewing and amending their leave policies with regard to any statutory changes and in consideration of public health guidelines.
Refusal to Return to Work Due to Medical Reason or Virus
Employers should follow public health guidelines with respect to returning an employee who is ill with the virus to the workplace. An employee should not be returned to the workplace before it is safe to do so. Fear of returning to work due to COVID-19, can be addressed by outlining the company’s various efforts in ensuring a healthy and safe environment.
Refusal to Return to Work for No Legal Reason
When an employee fails to return to work within a reasonable amount of time or pursuant to a workplace policy, they may be considered to have abandoned their employment. In such cases, employers may be able to terminate the employment relationship and the employee would not be entitled to any termination damages. However, such a claim is difficult to prove, and an employer should not do so lightly without consulting a legal professional. Otherwise, they may open themselves up to liability.
Employers should make attempts to receive confirmation from the employee that the employee does not intend to return to work, to see what the reason might be. Even if the employer believes the employee has either abandoned their employment or has resigned, it is still prudent to consult with a legal professional to ensure the resignation or abandonment is valid and can be relied upon. An employer who erroneously “accepts” or asserts either abandonment or resignation may find itself embroiled in a costly wrongful dismissal case.
Employers should consider the financial viability and the health of the company before deciding to recall the employees. If employers are recalling employees under different terms, the new employment agreement should be reviewed by a lawyer and properly implemented to protect the employer from a constructive dismissal claim.
Recalling employees may pose as challenging for employers during this time, and the process should be strategic to account for various factors affecting the company.
If you are an employer or an employee who has questions about the recall of employees or refusing to work, our team of experienced workplace lawyers can help. Contact us at 1 (800) 771-7882, or email [email protected] and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support, 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 1-(800)771-7882, or email [email protected].