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In recent days, much of the conversation around the COVID-19 pandemic has shifted to the subject of re-opening various sectors of the economy and the eventual return to a “new normal”. While the precise details of this re-opening remain unscheduled in many provinces, including in Ontario, what is certain is that employers will encounter a slate of employment law issues as they endeavour to re-open.
Among the first issues that employers will have to consider is bringing laid-off employees back to work. Employers need to be aware of the rules governing temporary layoffs and the proper method for recalling laid-off workers. Moreover, the fact that employees will be returning to work does not mean that those employees’ lives will have returned to normal–they may continue to face unexpected demands such as childcare obligations or caring for an ill family member. Thus, it is likely that employers will receive an above-average number of requests for leaves of absence or accommodation in the form of flexible work arrangements in response to these circumstances. Employers will need to be cognizant of their obligations under human rights legislation in relation to these issues, as well as the special COVID-19-related job-protected leaves which are now available to employees. Finally, the unfortunate reality that COVID-19 will continue to proliferate even as businesses re-open is likely to prompt concern from employees about the safety of their workplaces. As a result, some employees may refuse to attend work, or may refuse to perform specific work, out of concern for their safety. Employers need to know how to properly respond to such refusals, and should know how to approach occupational health and safety in the workplace so as to reduce the number of such refusals. Advance preparation will position employers to experience a successful return to the new normal, whatever it may entail.
This article primarily refers to the state of the law in Ontario. Many of the general principles discussed here are applicable in other jurisdictions, but employers should be sure to seek appropriate advice in relation to the jurisdictions in which they operate.
Recalling employees from temporary layoff
As employers look toward re-opening, one of the first orders of business will be to recall employees from layoff. In this regard, employers must be cognizant of the rules and limitations relating to temporary layoffs. In Ontario, a “temporary layoff” can last for a maximum of 13 weeks in any period of 20 consecutive weeks, or 35 weeks in any period of 52 consecutive weeks where certain conditions are met (for instance, where the employee receives supplementary unemployment benefits or remains on the group benefits plan), or for the period during which they retain recall rights under a collective agreement. A “week of layoff” is defined as a reduction of 50% or more of an employee’s regular weekly wages. An employee who is temporarily laid off is not entitled to statutory notice or termination pay unless and until the layoff exceeds the periods set out above.
Any layoff exceeding the applicable temporary layoff period will be deemed a termination of employment. In such circumstances, the termination date will be deemed to have taken place retroactive to the first day of the layoff, and any entitlements owing to the employee should be calculated as of that date.
Given that many employers laid off their employees in mid to late March, it is unlikely that there have been any deemed terminations yet. However, businesses which intend to remain closed through May or beyond should be mindful of when the temporary period will expire.
Employers should also be attentive to the procedure to be followed for recalling laid-off employees. Some jurisdictions require the recall notice to adhere to a certain format. For instance, in Alberta, a recall notice must be served on the employee, must be in writing, and must state that the employee is to return to work within 7 days from the date notice was served. While there is no prescribed format of recall notice in Ontario, employers will want to ensure that employees actually receive the notice of recall, and are given a reasonable period to return to work. Sending such notice by way of email can pose challenges because it is difficult to verify that the notice was received by the employee. Confirmation that the employee received a recall notice is important because an employee on temporary layoff who refuses to return to work within a “reasonable time” after having been requested to do so by their employer is not entitled to notice of termination or termination pay. If the employer cannot prove that the employee actually received the recall notice, they will encounter difficulty relying on this exemption.
Deciding which employees to recall should be based on business needs, while avoiding any appearance of discrimination. If a “rolling” recall is implemented as a business ramps up operations, employers should be careful to ensure that Human Rights Code-protected grounds such as age, family status or disability are not factors in deciding who receives a recall notice. Recall should be offered to all qualified employees. Additionally, refusals to return to work will need to be assessed on case-by-case basis to ascertain whether the refusal is related to issues such as family status or disability.
Finally, if the company is unionized or has a written policy regarding layoffs and recall procedures, it must follow the process laid out therein.
The duty to accommodate
As businesses re-open or transition away from remote-work operations, some employees may be reluctant to attend at the workplace for a variety of reasons. Usually, an employee’s absence will be grounds for discipline. However, in some cases, a refusal may be related to a human rights ground, giving rise to a duty to accommodate.
Many employees are struggling to meet unprecedented demands, including remote work, childcare issues, and family members losing their jobs or falling ill. Employees may seek flexible work arrangements in response to these circumstances. For instance, employees may ask to continue working remotely until childcare centres or schools re-open. In Ontario, and most Canadian jurisdictions, discrimination with respect to employment on the basis of family status is prohibited by human rights legislation. Employers would be prudent to consider in advance how they will respond to employees seeking accommodation on the basis of issues which engage human rights legislation. They should be prepared to be flexible in responding to such requests, and seek appropriate legal advice as needed.
The Ontario Human Rights Commission’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Human Rights Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to an undue hardship based on cost, or health and safety. While the Human Rights Tribunal of Ontario is not bound to follow the OHRC’s view, the Commission’s policy positions do have persuasive value.
If an employee refuses to attend the workplace without reasonable excuse, the employer may impose discipline, including termination. However, one should weigh the potential negative optics of imposing such discipline during a global pandemic. The same calculus applies to considerations over discipline in relation to a decline in employee performance.
Employers can require medical information from employees in specific circumstances such as for return-to-work or accommodation purposes, but this process is complicated by the ongoing pandemic. Practically, it may be difficult for employees to obtain medical documentation at this time. Privacy issues also arise when employers ask employees for health information. Generally speaking, if an employer intends to collect personal or medical information, it should explain why the information is being collected, obtain the consent of the employee to same, and keep the scope of disclosure as minimal as possible. All disclosure of information and consent for such disclosure should be documented.
New job-protected leaves
Employers in Ontario should be aware that additional job-protected leaves are currently available under the Employment Standards Act, 2000. Similar leaves are available in many other jurisdictions. The existence of these leaves may help employees navigate the challenging situations faced by many employees at this time.
The first leave, introduced in response to the COVID-19 pandemic, is the Infectious Disease Emergency Leave. This unpaid, job-protected leave is available to employees who are not performing the duties of their position for certain reasons related to COVID-19, including:
- personal illness, quarantine or isolation in specific circumstances;
- concern by the employer that the employee may expose other individuals in the workplace to COVID-19;
- to provide care or support to certain family members for a reason related to COVID-19, including school or day care closures; or
- due to certain travel-related restrictions (e.g. where the employee cannot reasonably be expected to return to Ontario).
The leave is retroactive to January 25, 2020 and is available for as long as the employee is not performing the duties of their position for one of the above reasons. Employers cannot require employees to provide medical notes to prove they are eligible for the leave, but can require “evidence that is reasonable in the circumstances.”
The second leave, “Declared Emergency Leave,” applies where an emergency has been declared pursuant to the Emergency Management and Civil Protection Act (EMCPA) and the employee cannot work because they are subject to an order under the EMCPA or the Health Protection and Promotion Act; or where the employee needs to provide care or assistance to close family members. Employers cannot require employees to provide medical notes to prove that they are eligible for the leave, but can require “evidence that is reasonable in the circumstances.” This leave will be available until the ongoing emergency declaration is terminated.
An employer cannot require an employee to take a statutory leave of absence unless the employment standards legislation allows for such. Under the Ontario Employment Standards Act, 2000, the Infectious Disease Emergency Leave does in fact contemplate an “employer-directed” absence from the workplace. For example, the government has indicated that this would include an employer directing an employee to stay at home if the employee has recently travelled internationally and the employer is concerned that the employee could expose others in the workplace to COVID-19.
Work refusals and occupational health and safety
In all jurisdictions, occupational health and safety legislation makes employers and supervisors responsible for taking all reasonable precautions to protect the health and safety of workers. This includes ensuring that workers are provided with the information, instruction, training, equipment, and supervision necessary to ensure health and safety in the workplace. These obligations apply with respect to the risks of COVID-19 transmission in the workplace.
Generally speaking, across the country, occupational health and safety legislation allows employees to refuse to perform work that they perceive as unsafe. In Ontario, an employee refusing work must immediately tell the supervisor or employer that the work is being refused and explain the circumstances for the refusal. When an employer becomes aware of a work refusal, it must investigate the worker’s concerns in conjunction with a workplace joint health and safety committee member or the health and safety representative, as applicable. If the matter is not resolved, the worker and the supervisor or employer must contact the Ministry of Labour. At that point, a government inspector will investigate the work refusal and determine whether the refusal is justified. At the time of writing, the Ministry of Labour has not yet upheld a work refusal initiated on the basis of COVID-19 related safety concerns. [Note also that employees who contract COVID-19 while at work may be eligible for WSIB coverage; thus, employers may also have a duty to report the illness to the WSIB.]
To ensure that best practices are followed, and to minimize the likelihood that employees will refuse to perform work they perceive as unsafe, employers should be proactive about implementing safety precautions as they move to resume operations. The types of precautions taken by employers will vary depending on the nature of the workplace. Employers should be attentive to all federal, provincial, and municipal requirements which govern conduct in the workplace during the pandemic, such as requirements to modify the workplace to permit social distancing. Employers should refer to the sector specific guidance and tip sheets developed by the Canadian Centre for Occupational Health and Safety, available on the CCOHS website. In addition, the Public Health Agency of Canada has created a comprehensive set of guidelines on employer decision-making during the pandemic, including a discussion of the use of personal protective equipment and other risk mitigation strategies. Those guidelines are available on the Government of Canada’s website.
Significant ambiguity remains as to what the coming year will bring, but one thing is certain–the fact that businesses may soon be re-opening will not mean that things have returned to normal. Both employers and employees must continue to adapt as operations resume and the “new normal” comes into focus. If employers take heed of the above considerations, they will be well-positioned to successfully address the challenges that will be faced in the coming months.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.