With many provinces starting to ease restrictions aimed at slowing the spread of COVID-19 and allowing various businesses to reopen, many employees and employers have questions about workplace safety and whether employees have to return to work.
Employers are responsible for following all public health guidelines for reopening businesses. This means employers must follow social-distancing requirements, for example by limiting the number of employees and customers in the workplace.
It is not up to employers and employees to decide which measures are appropriate. If an employer cannot follow public health authorities’ guidelines, they must not reopen for business. It’s also important to keep up to date, as these guidelines change frequently.
Here’s what else you need to know about returning to work safely.
I’ve been recalled from a temporary layoff. Can I refuse to go back to work if I don’t think it’s safe?
An employee who is recalled must return to work as long as their employer follows all measures required by public health authorities. If employees choose not to return to work, they may be considered to have resigned and could lose their eligibility for government assistance. Employees who feel unsafe going back to work should speak to their employers about continuing their leave of absence.
If an employer does not follow public health guidelines, employees can formally refuse work. When this happens, employers have to either investigate and fix the problem themselves or call in an inspector from the provincial ministry of labour, who will then decide if the workplace is safe.
Employees should let their employer know they’re engaging in a formal work refusal; if they simply avoid going to work, it could be considered a resignation.
Can my employer force me to get tested for the new coronavirus before I return to work?
If public health authorities do not mandate testing for employees going back to work, an employer cannot require it. Doing so could be considered both a human rights violation and a breach of privacy rights in some situations.
I’m being recalled to work, but paid less than before. Can my employer do that?
Employees should return to the same job with the same pay if at all possible.
Employers who bring back employees on different terms risk constructively dismissing them. This is especially true if the employee’s pay has been lowered by more than 10 per cent.
In cases where employment terms have changed, employees may choose to consider it a termination of employment and require the employer to pay severance.
Employees who choose to accept a pay reduction should notify their employer in writing that they expect the pay reduction to be temporary and their salary to increase to normal levels as soon as possible.
Can my employer recall younger employees from a temporary layoff before older employees?
Non-unionized employers do not have to follow seniority when choosing employees to recall from temporary layoffs. Their decisions, however, must be made in good faith and without consideration of discriminatory factors, such as an employee’s age, ethnicity or place of origin.
It’s important to remember that employment laws have not changed or been suspended amid the pandemic. Employees still have the right to their job, their compensation and their usual terms of employment, where possible, and employers still have the same duty to keep workplaces safe.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims.
Visit EmploymentLawyer.ca to learn more about your employment rights.