‘If the employer has done what needs to be done to make the place safe, then an employee would potentially be in a risky situation by refusing to return’
One day the coronavirus outbreak will end and, en masse, millions of remote employees will be returning to the workplace they knew before.
But what should legal considerations should employers focus on in the transition back to the workplace?
Sara Kauder, senior employment lawyer at Minken Employment Lawyers in Unionville, Ont. shared some insights with Canadian HR Reporter.
Q: How should workers on temporary layoffs be recalled back to work?
A: “Employers will have to assess when the time is right to recall them but, of course, there are certain parameters and timeframes set out in the Employment Standards Act; if they go beyond that, then it becomes a termination.
“Obviously, they’re going to have to look at the financial situation and the health of the company and determine what employees can be recalled, how many, what time; it might need to be staggered depending on the business.
“It might be necessary to recall some but not others; it might be a situation where hard choices are required and terminations may become necessary, in which case there’s going to be the analysis of the termination obligations to these employees. Do you want to have a staggered return to work to make sure that material supplies and all of that is ready so that employees can be productive when the time comes to return to work?
“Employers also want to make sure that confidential information, all company property, is brought back into the workplace because employees have accumulated a lot of data, a lot of company property, and it needs to get back to the workplace.”
Can a reduction of hours and pay become a permanent change?
“Employers are going to have a hard time maintaining that going forward unless they can demonstrate that they’re continuing to suffer, because if it does extend beyond the emergency provisions and restrictions that have been set out by the government, employers are going to be at risk for potential constructive-dismissal claims.
“Something that could potentially be impacted — depending on how much of a reduction there are in the number of hours — will be things like benefits because some benefits are only for full-time employees and not part-time employees.
“If an employee was a full-time employee, but because of COVID they became a part-time employee, the employer might have been able to make an arrangement with the insurance company whereby full benefits would be maintained. But if the reduced hours is going to be maintained, that could then become an issue with the insurance company; it might impact the benefits that the employee has, but it shouldn’t change their overall status.
“They would still be considered an employee, and whether they’re a part-time or a full-time employee, it wouldn’t affect a lot of the protections under the Employment Standards Act or notice entitlements.”
What if an employee was moved into a new role and wants to stay there?
“One thing that an employer would want to think about is whether or not there needs to be changes to an employment agreement to reflect that new position. If compensation is changed, or hours or responsibilities, those are things that may not have been papered as a result of COVID because it was meant to be a temporary measure. But where it’s going to become permanent, employers should think about making those changes more formal and implementing a revised employment agreement or contract if one is already in place.
“If one isn’t in place, it might be a good opportunity for employers to put those types of things in place, [and] they might want to add things like termination clause, non-compete, non-solicits. If those things were not in place before, sometimes it can be risky to slide those things with a change of position if there’s no additional compensation that’s being provided.”
What if an employee refuses to come back to work because they think it’s not safe?
“Employers have to provide a safe working environment under the Occupational Health and Safety Act. An employee can refuse to return to work if they can prove that it’s unsafe or that it’s likely to be unsafe.”
“But if the employer has done what needs to be done to make the place safe, then an employee would potentially be in a risky situation by refusing to return if they don’t have strong grounds to do so and that could be viewed as an abandonment of employment or resignation.
“Certainly, a deep cleaning is something that is a good idea and for businesses that have been closed, a deep cleaning should probably be sufficient. But if we’re talking about a situation where there’s still active cases and there’s cause for concern, then that’s a different story, because then the employer is going to have address those concerns.
“For example, are members of the public coming in and out of the workplace? It would go back along those lines of analyzing who has access to the workplace, what is the potential risk of that, and taking steps to address those concerns.
“We might see a situation where some of these remote work-from-home arrangements may continue in some shape or form because there may be legitimate cause for concern that the immediacy of COVID will not have passed by the time businesses are opening up again. There’s constant talk about a resurgence or a second wave and there’s going to be heightened awareness and heightened sensitivity to that. That is something that employers are going to have to take into consideration and it might be a situation where more interactions with the public with suppliers, customers, are done remotely even for an ongoing basis.”
What if an employee wants to keep working remotely?
“An employer is not obligated to honour that request but it’s a reasonable ask and if there’s a concern about minimizing contacts between employees, even when the situation is better, it might make sense to have rotating situations where some of the week employees are in the workplace.
“But an employer should realistically analyze the request and if it is a situation where it is possible for an employee to work remotely, then they may want to consider having some sort of flex arrangement -- maybe not a situation where all of a sudden the employee is going to 100 per cent be working from home, but it may open the door for a discussion whereby one day a week [is done from home] or there can be a greater amount of flexibility.”
“One of the things that is that is going to come out of this COVID situation is that a lot of businesses can function with workers working remotely; it may not be the way things were done in the past and it may not always be the ideal situation, but this is going to show that a lot of people are able to do that. The world is going to be very different when all this is over. And, when you have a bunch of people all working in cubicles next to each other, we may have to rethink how that works.”
What if an employee has family issues that require accommodation?
“Employers do have a duty to accommodate up to the point of undue hardship. There are certain protected grounds and family responsibilities, childcare, health issues, whether it’s their own or for a family member, those are all things that can trigger the employer’s duty to accommodate.
“Employers need to take those requests more seriously and need to make sure that they are doing their due diligence to investigate: Is there a potential human rights aspect to this request? And is it reasonable to accommodate it in light of those unique circumstances facing that particular employee?”