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This post is the second part of a three-part series on employment after layoffs due to COVID-19. You can see the first part of the series here.

Last week, the Ontario government announced its three-stage plan for re-opening the economy. The Premier told employers to prepare for re-opening.

As employers begin to prepare, employees should do the same.

It is likely that a return to your previous employer may not be as it was before. Your workplace may be adjusted to reflect a new “normal”. The following address the top 3 questions we have received from employees as they begin to consider a return to work after being laid off.

1. Can I refuse to return to work because I feel unsafe?

Employers are required to provide a safe workplace pursuant to the Occupational Health and Safety Act. An employee is entitled to refuse to work when they have reason to believe that any equipment, machine, devise, or generally, the physical condition of the workplace is likely to endanger them.

An employee cannot refuse work simply because of COVID-19. There must be a link between COVID-19 and the belief that there is a risk for injury or illness. Examples of such risks may include:

  • An employer failing to provide an employee with appropriate personal protective equipment or training for such equipment;
  • Improper physical distancing measures; or
  • A risk of exposure to COVID-19 in the workplace that has not been properly managed.

Different jobs and duties will have different requirements for necessary measures. We recommend that employees consult with an employment lawyer before refusing to work. Doing so will ensure that the employee has taken the necessary step to assess the risks in the workplace and follow the correct protocol when refusing to work. Taking the appropriate steps when initiating a work refusal can help eliminate the chance of wrongful dismissal, layoff, or an accusation of job abandonment.

2. Can my employer modify my job duties when I return to work?

When employers begin to recall employees, the recall will likely take place at a time where services have been adjusted to operate in the “new normal”. For instance, instead of operating a sit-down restaurant, a restaurant may have transitioned to exclusively providing delivery services, requiring employees that were once servers to operate as couriers instead. In another example, retail businesses may no longer require traditional sales and stock associates, but rather fulfillment associates.

Generally, a significant change in duties or a change in a position may be considered a constructive dismissal. While this is the case, an adjustment in service delivery is inevitable if some businesses are to adapt and continue to operate in the “new normal”.

If there has been a change in an employee’s role following a recall, the employee should confirm and clarify the following:

  • What the new duties will include;
  • Whether the new duties are permanent or temporary in nature; and
  • The details surrounding remuneration and expenses, if applicable.

If your role has been significantly modified or changed completely, consult an employment lawyer before refusing to accept the changes. These unprecedented times with employment and COVID-19 will require more than just the traditional assessment before claiming constructive dismissal.

3. What if I am not recalled to work?

As employers begin to assess what their businesses will look like at re-opening, they may determine that they will not require the full staff lineup they employed prior to the layoffs. As a result, some employees may be notified that they are not being recalled or that their temporary layoff has now become a permanent one.

If this happens, or if an employee is notified that their employment has been terminated following a temporary layoff, the employee will be entitled to notice or pay in lieu of notice and severance pay (if applicable). The employee, depending on their employment contract, may be entitled to common law notice as well.

If a layoff has surpassed the previous agreed upon date or has become permanent, consult an employment lawyer to understand what your entitlements may be.

If you have any questions relating to COVID-19 and your employment, whether you have been temporarily laid off, wrongfully dismissed, called back to work or otherwise, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at malhert@sultanlawyers.com.


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