Do laid-off workers have to come back to the same job?
With millions of workers set to return to a “new normal” when it comes to work, many employers are asking questions about how that will look as the COVID-19 pandemic subsides.
“I’m already fielding calls about what happens if people don’t want to go back or employees are saying, ‘Well, I don’t feel comfortable going back in,’ and so it’s a difficult situation,” says Lai-King Hum, founder of Hum Law in Toronto. “The biggest topic that I’ve faced has been temporary layoffs and return to work and safety issues.”
Hum provided Canadian HR Reporter with some helpful hints on how to successfully bring back workers, some of whom may have been temporarily laid off.
Q: When should laid-off workers be returned to their jobs?
A: “If you want to maintain it as a temporary layoff and not be caught having to terminate them, then there’s specific timelines around bringing them back. Generally speaking, you can only lay them off for 13 weeks out of any 20-week period, this is under the Employment Standards Act [in Ontario]. If you have continued, for example, their benefits while they were laid off, you could extend it to 35 weeks in any 52-week period.
“Layoffs are a tricky situation… if you’re only doing it for 13 weeks, you’re generally safe. There has always been in normal times the risk of constructive dismissal. Apart from that, if you are an essential business, you could always require workers to go into work provided that you have kept your workplace safe.
“[It’s important that] you comply with the obligation to have a safe workplace and, in these unusual times, you probably have to have plenty of hand sanitizer, a physical distancing rule and… make sure that the common areas, the washrooms, the kitchen, are maintained in a special way. [An employer should buy] protective equipment, purchase facemasks in some work environments.
“You can require workers to come back to work if you are legally able to open your workplace and if you have kept your workplace safe, and you have not failed to accommodate for special situations [such a] childcare duties, schools are not open yet and self-isolation is still required. You can’t bring a babysitter in, someone has to take care of the children. You may have to accommodate that worker who will not be able to physically go back to work.”
Q: Is there a risk that an employee may successfully claim a constructive dismissal?
“Yes. In pre-COVID time, in usual circumstances, unless your contract allows the employer or your collective agreement allows it or your industry typically has layoffs, typically you cannot lay off someone temporarily without a risk of a constructive dismissal claims.
“If you lay off someone temporarily during COVID-19, then you could be at risk for the person coming back and saying, ‘You don’t have a right to temporary lay me off, I’m employed with you. You have an obligation to keep me employed, and if you lay me off and I’m deemed to have been terminated.’ There’s a risk that you could be exposed for providing termination pay immediately.”
Q: How should these employees be notified of a return?
A: “There’s no specific way that they have to be notified but the way that you notified them that they were temporarily laid off is probably a good way to notify them that they’re returning. If you handed out individual letters by email, then notify people that way.
“I like when employers also have time to follow up with a phone call and say, ‘Hey I sent you an email,’ it’s just better relations. But if you’re a very large workplace, and that’s not possible, maybe your HR person could do it. If there’s hundreds of employees, then it is just impossible, probably [send] an email, and ask for confirmation.
“Because it’s difficult to get in touch with everyone and you have to send it by post to notify them, provide a timeline so that they’re not required to return the next day and then all of a sudden they haven’t shown up because they weren’t notified.”
Q: Do returned employees need to sign brand new contracts?
A: “If they were on temporarily temporary layoff, they’re laid off from the job that they had, they would be returning to the job that they had, the answer is no, they don’t have to because they’re returning to their old job.
“However, given what has happened to many workplaces, there’s probably going to be a lot of restructuring and reorganization of positions, probably staggered work hours and working from home. There may be changes in the position, maybe some work reductions or switching people around to different positions, so there may be new contracts, but the quick answer is no.”
Q: Do employees have to come back to the same job?
A: “From an employer perspective, they have an obligation to return the employee to their job, what they were doing before. If the employee or the employer wish to do something which fundamentally changes the job that the person is doing, then there has to be agreement.
“If the employer makes the change themselves unilaterally and the employee has no choice, then the employee has to decide, ‘Do I take this or do I claim a deemed dismissal because I’m not returned to my old job?’
“An employee doesn’t have the choice in terms of ‘Well, I don’t want this job. I want the other one,’ it’s based on the employment contract. Let’s just say it’s an easier situation where the employment contract actually allows for a temporary layoff. Usually, the contract will have the position that the person is hired for and then when they return from the temporary layoff, they would return to that position.
“If the employer failed to return you to that position, the employee has the right to contest that, ‘Well, you’re not giving me my job back.’ The same thing could apply the other way, if the employer refuses to work their job, the employer can simply say, ‘Well, you’ve effectively resigned,’ but given what happening now, I’ve been I’ve encouraged people to be flexible. Employers and employees, everyone’s facing a difficult time.”
Q: What if a worker doesn’t want to return to work for safety reasons?
A: “If an employee comes back, and let’s say it’s an older person, and usually they work in front of customers, but they’re saying, ‘Look, I’m not sick in any way right now, my doctor has said, I’m OK to go back to work, but I’m in a high-risk category. I don’t want to work in front of customers I work, I prefer to work in the back room.’ Well in that case, you probably have other workers who could work in the front. And you’re probably prudent to have the older worker who may have increased risk to get COVID-19 to work in the back room.
“It’s a tough situation because under occupational health and safety [regulations], the employer has the obligation to make sure that their workplaces is safe, but let’s say at all safety precautions have been taken but the workers still feels anxious or concerned, because they’re in a higher risk category… If there’s a doctor’s note that absolutely says they cannot have contact, that might be helpful to the employees. But if it’s an expressed concern with nothing else, then might be harder to say, ‘I refuse to go back into work.’”
