Recalled to work? 5 things to consider before you go back to the job

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Canada lost more than three million jobs in March and April amid the new coronavirus pandemic, according to figures from Statistics Canada, with temporary layoffs accounting for 97 per cent of new unemployment recorded in April.

Now that some provinces have announced plans to reopen, many employees expect to be recalled from these temporary layoffs.

While recalled employees may be relieved, it’s important to take stock of your legal rights before returning to your job.

At Samfiru Tumarkin LLP,  our employment lawyers in Ontario and British Columbia have spoken to hundreds of individuals who did not appreciate their legal rights when returning to work.

Here are five things to consider if you are being recalled to work.

  1. What should I do if my workplace isn’t safe from the new coronavirus?

Every employer has the obligation to maintain a safe working environment. Our governments have provided directives on how this can be achieved.  If your job makes it impossible for these recommendations to be followed, then you have the right to bring these deficiencies to light.

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If you have reason to believe that your job or place of work is unsafe, you should advise your employer of your concern. This will immediately trigger your employer to conduct an investigation and, if the investigation does not resolve the safety concern, it may ultimately be escalated to your provincial health authority.

During this time, you will not be required to show up for work. If your employer won’t make the workplace safe, an employment law firm like Samfiru Tumarkin can remind it of its legal obligations.

Every province has some measure of penalty for an employer that takes reprisal actions against a complaining employee. Your employer cannot punish you, in any shape or form, for raising concerns about safety in the workplace. If they do, you should contact our firm, and we will advise you of your legal rights.

READ MORE:  Coronavirus: As businesses reopen, here’s what to know about going back to work safely

  1. What happens if I am not returned to the same job I was laid off from?

Most businesses have been forced to pivot to new ways of operating since the pandemic hit, and many have been required to restructure entirely. What this might mean is that the job you are being recalled to looks nothing like the position that you left.

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Companies may make changes to non-essential terms of your employment at their discretion. So if the retail store you are returning to is now requiring you, as part of your job duties as a cashier, to box products for curbside pickup, this is likely a change that you will be required to accept if you wish to continue working there.

If your employer is trying to change what would be considered an “essential” term of your employment — such as your salary or wages, hours, or position  — you can choose to treat the change as a termination of your employment and seek full severance pay. At Samfiru Tumarkin  LLP, we have started assisting many individuals who found changes to their compensation to be unacceptable.

If you are willing to accept a change, but only for the duration of the coronavirus pandemic, make it known to your employer in writing. You should explain that you are willing to accept this change, but only for the duration of the crisis.

READ MORE: Coronavirus: How long will pandemic-related job losses last in Canada?

  1. What if my employer gives me a new contract or employment agreement when I return to work? 

You do not need to sign a new employment agreement. A new contract likely tries to take away future rights, such as the right to get severance.

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As an employment lawyer, I always recommend that my clients have me review anything their employer gives them to sign.  This is particularly true now, as many companies are likely looking to reduce their potential exposure in the event that future layoffs or terminations are required.

  1. Does my seniority start back at zero after a layoff? 

No, it does not. Your employment will be deemed continuous, notwithstanding the period of time in which you were temporarily laid off.

  1. Can my employer put me on a layoff again in the future?

One of the bigger myths in employment law is that companies have the inherent right to put an employee on a temporary layoff. They do not.

In order to have the right to place you on a temporary layoff, an employer must have specifically contracted with you for this right. They may also have the ability to put you on a layoff if you’ve agreed to be laid off in the past.

What this means is that it’s possible your acceptance of your recall to work in this particular instance could be used against you in the future if the company resorts to a temporary layoff again.

To protect yourself, you can inform your boss in writing that you agree to this current layoff, but that you do not acquiesce to future layoffs outside the context of a global pandemic.

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If you choose not to accept the layoff, and, instead, treat it as a termination, it is important that you reach out to us before you discuss this with your employer.

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.

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve — during this crisis