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Phase 3 of the COVID-19 reopening strategy has begun in earnest. This means that we are getting close to a full reopening of the provincial economy. As we move close to full operations, employers and employees are asking about what they can expect as employees return to work and the government support programs begin to be unwound.

To assist, below are some key points to consider as employees and employers begin to evaluate their employment (and those of their organizations).

1. Returning to the Workplace: Recalling Employees and Returning to a Safe Workplace

Refusals to Return to Work

While employees have the right to raise concerns about safety in the workplace, they cannot refuse to return to work because of a generalized fear of returning to the workplace.

It is understandable that employees may be apprehensive about the safety of returning to the workplace. The threat of COVID-19 has not yet diminished, and safety is crucial as the economy begins to reopen. Legislative protections also exist to maintain an employee’s safety in the workplace. If an employee has concerns about the safety of the workplace then they can refuse to work. However, this refusal must be based on a legitimate reason and substantiated by the employee’s own observations or experiences in the workplace.

The Ontario government has been producing safety guidelines that are industry-specific and that include an outline of procedures an employer should follow. If there is a safety concern in the workplace, the concern should be brought to the attention of the employer and the employer must be given an opportunity to investigate and respond to the concern. An employee who refuses to return outright, without any dialogue, could be considered to have resigned or abandoned their employment.

Signing a New Employment Contract or Changing the Employment Terms

As businesses gradually recall employees and begin to restart operations, it is illegal for an employer to arbitrarily re-write the terms of the employment relationship that existed prior to layoff.

Following a recall, an employer is required to reinstate the recalled employee to their pre-layoff roll. If the workplace has been modified to accommodate the changing landscape of the businesses following COVID-19, then a temporary change in role may be permissible. While this may be the case, such a change should be temporary, and the employee should be returned to their old position or to a comparable role when the COVID-19 crisis period is over.

Similarly, an employer should not attempt to force an employee to sign a new employment contract or to accept unreasonable changes to the terms of employment. An employee would similarly be wise to seek legal advice if they find themselves subject to this set of circumstances.

2. Ending the Employment Relationship: Terminations Following a Temporary Layoff

Reinstatement vs. A Severance Package

Some employers have decided, or will decide, to permanently reduce their staffing levels by converting temporary layoffs to terminations of employment.

Employees who find that their “layoff” has turned into a permanent severing of the employment relationship have options.

Specifically, under a new regulation under the Ontario Employment Standards Act, 2000, employees that were “temporarily laid off” prior to March 1, 2020, or employees who are currently working with reduced hours and/or wages, are now in most circumstances considered to be on job-protected emergency leave.

The leave runs until the end of the “COVID-19 period” (six weeks after the conclusion of Ontario’s State of Emergency). The leave mandates that an employer must restore the employee to their previous position at the end of the COVID-19 period.

An employee who has been informed that their “layoff” has changed to termination may be legally entitled to insist on reinstatement. This is because, while an employee is on a job-protected leave, employers are not legally permitted to terminate the employment of any employee unless they can demonstrate that the dismissal is entirely unrelated to the leave.

If an employee is not interested in returning to the workplace, they can choose to accept the termination without seeking the protections offered under the emergency leave. However, in such a case, an employee is still entitled to a severance and termination package. The package which an employer provides must include the employee’s statutory notice or pay in lieu of notice (in addition to severance pay where applicable). Employees may also be entitled to payments in lieu of “reasonable” notice as determined by the common law. This can be significantly more than the statutory amounts.

3. After the COVID-19 Period: What Comes Next?

While the end date may not be explicitly clear, the COVID-19 period will inevitably end. Decisions that may be temporarily in place will have to take form. It is also possible that we may see further legislative changes as the government works towards restarting the economy.

Here are some of the considerations that employers and employees will have to confront:

  • When temporary reductions in hours and payments will be restored to pre-COVID arrangements.
  • Whether layoffs will be implemented or restarted at the conclusion of the government-mandated “COVID-19 Period”.
  • What will happen if there is a second wave or another shutdown?

If you have any questions relating to safety in the workplace, changes to the terms of your employment, notice of a temporary layoff resulting in a termination of employment, or how COVID-19 may impact your employment circumstances, please contact Toronto severance lawyers Sultan Lawyers at 416-214-5111 or here.

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