A note from the Vaughan Chamber of Commerce: This is the first of a series of Business Law 101 articles that the VCC is putting out to our members. This series will provide informative, reputable, accessible and up to date articles from our outstanding group of members who are legal professionals at no additional cost.

The articles will cover a wide range of topics in law related to business such as employment law, trusts and estates law, tax law, intellectual property law, contractual law and much more. We also hope that during the COVID-19 crisis, these articles will provide our members with a convenient way to keep up with quickly changing laws. 

By: Stuart Rudner, Employment Lawyer and Mediator, Rudner Law

The team at Rudner Law have been working with our clients to navigate this unprecedented situation, and it is heartening to see that the discussion is shifting from closures and layoffs to getting back to business and safety at work. 

Of course, this phase of gradually reopening business raises all sorts of new questions. As we often say, we know that you don’t have “Employment Law issues”; you have business decisions to make. Our job is to make sure that you are aware of your rights and obligations as an employer, so you can make an informed decision. 

Below are some of the questions we are being asked. Of course, every situation is different, so I will put the usual disclaimer upfront: this information does not replace legal advice, and we encourage you to speak with an Employment Lawyer before making any decisions. Your specific rights will depend on your situation.  In light of the rapidity of change these days, we also note that the information below is current as of this date and may have been superseded by subsequent developments.

How long do you have to recall workers from a temporary layoff?

The Employment Standards Act, 2000 (“ESA) sets out the parameters for temporary layoffs in Ontario. Pursuant to the ESA, a layoff cannot last more than 13 weeks in any 20 weeks, although that can be extended to 35 weeks in any 52 weeks in some circumstances, such as if you continue their benefits or supplement their Employment Insurance benefits.

Once you reach the maximum time allowed, the temporary layoff is deemed to be a termination of employment. In that case, you would have to compensate the employee in the same way as if you had dismissed them on a without cause basis, which can involve a substantial cost.

Do you have to recall all employees at once?

No. You should assess your needs and then determine how many people you will need. The return can be staggered as you resume business, bearing in mind the time limits referenced above.

Are there rules regarding who you recall first?

If your workplace is unionized, your collective agreement likely sets our procedures for recalling workers. Otherwise, unless you have a relevant policy in place, which is unlikely, you are entitled to decide who to bring back and when. Much like hiring and firing, employers can make these decisions based on any reasons at all or no reason; that is your prerogative. 

The only exception is that you cannot make such decisions based on grounds protected by the Human Rights Code. It is important to note that the Ontario Human Rights Commission has stated its view that negative treatment of employees who have or are perceived to have, COVID-19, is prohibited by the Code.

What if I cannot bring an employee back to full-time work right away?

This can be a challenge, as technically, any change to an employee’s terms of employment, such as reducing their hours, could constitute a constructive dismissal. We are working with our clients to address these issues with their staff and enter into agreements with them so that our clients get the support they need without exposure to liability.

What is the Employer’s Obligation to prevent the spread of the virus?

Employers have a duty to make reasonable efforts to ensure a safe workplace. As a result, you must put policies and practices in place to minimize risk. If you have a Health and Safety Committee or Representative, they should be activated. 

If remote work is not viable, then the next best thing is physical distancing. Personal contact (with other employees, customers, and suppliers) should be minimized, safety equipment like masks and gloves should be used, and soap and hand sanitizer should be available.

It is vital that you communicate the rules and expectations to everyone, as well as the procedure for reporting safety concerns.

What if an employee claims they feel unsafe at work?

Employees have the right to refuse unsafe work. However, any concern must be legitimate and specific to the workplace. A general fear of going outside during the pandemic is not a legitimate concern about an unsafe workplace.

If an employee does have a legitimate safety concern, they should report it to their employer, who is expected to investigate it in good faith. If the parties cannot agree, the employee can contact the Ministry of Labour, who will assign an Inspector to address the issue. 

What if an employee refuses to come to work?

Simply put, employees are expected to attend work during their regular working hours; it is not optional. There are some potential exceptions, such as:

  • An entitlement to job-protected leave, such as the new leaves put in place which protects employees who cannot work due to COVID-19;
  • An entitlement to accommodation under the Human Rights Code, such as an employee that is immunocompromised; or
  • The right to refuse unsafe work (as discussed above).
  • Without a legally valid reason, refusing to attend at work for regular working hours is, effectively, abandonment of one’s job. 

To learn more about Rudner Law, check out our website and our page on how we help employers. We would be happy to speak with you and discuss how we can help. You can always reach out to us by email at info@rudnerlaw.ca or by phone at 416.864.8500 or 905.209.6999.

Moving Forward

  • Throughout the pandemic, we have encouraged everyone to stay safe and stay informed of their rights. For that reason you should, check-out our regularly maintained running blog of COVID-19 workplace issues.
  • Visit the Vaughan Chamber of Commerce COVID-19 business resources page at https://vaughanchamber.ca/covid-19-business-resources/
  • You can find frequent Employment Law updates on our social media platforms, including Twitter, LinkedIn, and Facebook, as well as past episodes of our online show, Fire Away, and other videos on our YouTube channel.
  • Sign up to receive our Employment Law updates in your inbox.
  • If you are not doing so already follow the Vaughan Chamber on any social platform via the links below!

The Vaughan Chamber hopes you stay safe and healthy during this time. We will continue to work alongside you by providing services such as the new Business Law 101 series to keep you up to date and informed on business law by a trusted group of legal professionals. 

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