COVID-19 has wreaked havoc globally, and short of their own infection and/or that of friends or family, economic uncertainty through work instability or loss of employment is one of the most profound ways in which this crisis has impacted Canadians collectively and individually closest to home.
After, in some cases, months of closures due to the pandemic, the Province is slowly and incrementally permitting employers in Ontario to reopen, under strict conditions. As we all slowly adapt to the “new normal” in all aspects of our lives, many questions are arising about working conditions, client interactions, recall from layoff and other principles of general application, now being applied to the unprecedented closure caused by the COVID-19 pandemic.
The fundamental question that employers need to consider in the course of reopening is that of whether work can be done safely, while complying with government direction, whether through Public Health orders or otherwise.
Many issues related to reopening and the application of other employment policies in union environments will be covered by the collective agreement between the union and the employer. In the non-union environment, policies are less likely to formally be in place, and as such it can be difficult for employers to know their obligations and employees to understand their rights within this anxiety-riddled climate.
Recall rights are particularly important after the passage of Ontario Regulation 228/20 under the Employment Standards Act, 2000, which discontinues the time limits of temporary layoff while the COVID-19 pandemic continues.
Some issues which need to be considered in the course of reopening include:
- Is the employer permitted to reopen, and if so, under what specific restrictions?
- What employee safety accommodations, including the installation or provision of safety equipment, need to be made before the employer will be found to be in compliance with the requirements of the Occupational Health and Safety Act?
- What further accommodations are needed to provide for the safety of customers, suppliers and other visitors to the business?
- Is any government or industry guidance of best industry practices available to guide the business reopening?
In the course of recalling its employees, the ability of employers may be constrained by agreements or policies within the workplace, or by statute. Unless provided otherwise, employers are entitled to recall employees in the order in which the employer wishes, so long as it does so in a manner that is not contrary to human rights laws.
An employer is able to make reasonable demands about how and where the work in question is performed, so employees who have become accustomed to working from home may be required to continue to do so, or to return to the pre-pandemic workplace at the employer’s direction, so long as it is reasonable.
Issues can arise when an employer recalls an employee to work, and the employee decides not to return out of concern for their safety, or due to other factors related to the COVID-19 pandemic. Various protections are in place for the benefit of employees affected by, for example, childcare responsibilities but even in the absence of formal procedures, employers and employees will be well-advised to navigate the recall process with one another with consideration for the needs of the other party. If an employer seeks to discipline or terminate the employment of an employee who refuses to return to work, or if an employee seeks to refuse to return to work when directed to do so by their employer, it is important that they do so after consulting a lawyer who specializes in employment law.
In a subsequent blog post, we will discuss some of the specific safety considerations that an employer ought to reflect upon when reopening.