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As vaccination rates increase, more employers are requiring employees to return to work, either by recalling employees from a layoff or by directing employees to return to the office after working at home. Many employees are hesitant about returning to work and want to understand their rights, including whether they can be fired or face wrongful termination for not returning. In this blog, we discuss options for employees who are reluctant to return to an office setting.

Employees who do not return to work risk termination with cause

Most employees will be required to return to work if requested by their employer. It is an implied term of employment contracts that employers can determine where work is to be performed, so long as the changes made are not so significant as to constitute a constructive dismissal. An employee’s opinion as to the safety of in-office work, or preference for working from home, will in most cases be legally irrelevant if the employer demands they return to the workplace. Failure to return to the workplace could result in an employee being fired without reasonable notice or termination pay.

There are limited exceptions to an employer’s ability to demand employees return to work

While most employees will be required to return to work (and/or the workplace), there are some limited exceptions, including situations involving legitimate work refusals and requests for accommodation under Ontario’s Human Rights Code.

Employee’s Right to Refuse Dangerous Work

An employee has a right to refuse work if they have reasonable grounds to believe the work is dangerous. The Ministry of Labour has published guidelines employers must follow prior to opening up for business, which vary depending on the job sector. For example, employers may now require employees to wear personal protective equipment and maintain physical distancing. They may also create procedures for disinfecting surfaces and provide hand-washing supplies and alcohol-based hand rub for employees’ use.

If your employer has not yet established safety protocol, or you continue to encounter unsafe situations, you should first raise your concerns with your employer. If the matter is not resolved, you may escalate the matter to the Ministry of Labour, which will investigate the circumstances and determine whether your workplace is safe for your return. The Ministry’s decision is binding; this means that if you disagree with the decision and continue to refuse to report to work, you risk being fired without reasonable notice or termination pay.

Request for Accommodation under the Human Rights Code

The Ontario Human Rights Code protects employees from discrimination in their employment based on protected grounds. If an employee can establish a medical reason they cannot return to work or is refusing to return due to childcare or eldercare responsibilities, they may be entitled to accommodation under the Code.

Accommodation can take many forms, including allowing the employee to continue working from home. An employee’s request for accommodation must relate to a protected ground under the Human Rights Code. Employees may wish to contact an employment lawyer for assistance with making their request for accommodation.

Contact Sultan Lawyers in Toronto for Advice on Employee Rights When Returning to Work

The employment lawyers at Sultan Lawyers can advise and represent you in your communications with your employer to preserve your legal rights and reduce the risk of wrongful dismissal. Contact us at 416-214-5111 or here.

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