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Can you be fired for taking time off to care for kids as schools close amid Omicron surge?

Click to play video: 'Impacts of Omicron in the workplace' Impacts of Omicron in the workplace
As the booster shot rollout expands, there are renewed questions about workplace mandates. Employment rights lawyer Lior Samfiru discusses the impacts of Omicron and your rights as an employee – Dec 20, 2021

The rapid spread of the Omicron variant of COVID-19 has caused staffing shortages as employees self-isolate and has pushed some schools to return to the remote-learning model, forcing parents to pursue alternative work arrangements.

As daily case counts climb, my employment law colleagues and I have gotten lots of questions about employment rights, returning from remote work and workplace safety amid the latest wave of the pandemic.

Can I be fired due to the impact of the Omicron COVID-19 variant?

Your employer can fire you if their business is being hurt by restrictions intended to help stop the spread of Omicron.

Companies can terminate an employee for almost any reason, as long as the termination does not violate human rights legislation and the employer provides full severance pay. There is no way to pre-empt or prevent a termination.

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A termination becomes a wrongful dismissal when your employer fails to provide you with enough advance working notice or an appropriate severance package. Severance could be as much as 24 months’ pay depending on a number of factors such as your age, position, length of service and the availability of similar employment.

In my experience as an employment lawyer, most severance offers miss the mark completely, and employees who accept them leave thousands of dollars on the table.

I always recommend talking to a lawyer, like the team at Samfiru Tumarkin LLP, before accepting any severance package — and certainly before signing a release in favour of the employer — to ensure that you are getting the compensation you are legally owed.

READ MORE: The top 5 termination myths — and what you need to know about being fired from a job

Can my boss make changes to my job due to the pandemic?

Pandemic or no pandemic, it is illegal for your employer to make significant changes to your pay, hours of work, job title or duties without your permission.

This includes temporary layoffs, which are illegal unless there’s a clause in your employment contract permitting them, the employer gets express consent or, in some cases, when the employee has agreed to a layoff in the past and been recalled.

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Placing someone on a layoff without pay amounts to a change to the terms of your employment, since the exchange of pay for work performed is core to any employment relationship.

If your employer tries to reduce your hours or pay, or temporarily lays you off, and you don’t speak up, you could forfeit the possibility of obtaining compensation through a constructive dismissal claim.

READ MORE: Coronavirus: What to do if your employer cuts pay or reduces hours

Can my employer force me back to the office during the Omicron surge?

As long as your employer is complying with public health guidelines and has the required safety protocols in place, they can ask you to return to the workplace despite the surge.

Employers are, however, legally obligated to provide a safe work environment. This means your employer must ensure the company and their employees are following all health and safety legislation, and in the context of COVID-19, any government mandates, guidelines or orders.

In most cases, this will include things like requiring the use of personal protective equipment in the workplace, enforcing social distancing and handwashing, implementing a COVID-19 policy, which may include vaccine or testing rules, and dealing swiftly and appropriately with any outbreaks.

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If I don’t return to the office, could it be considered job abandonment or a resignation?

If you refuse to show up to work without speaking to your employer, your absence could constitute job abandonment after some time. This is especially true if you refuse to communicate with your employer at all during this period, leaving them without any indication whether you’ll come back to work, either now or in the future.

Employers, however, can’t assume you’ve resigned. You must provide your resignation voluntarily, expressly and without reservation. While it’s not technically required, it is best practice for your employer to confirm your intention to leave your job in writing.

Unless you expressly confirm your intention, your employer won’t be able to support any allegation that you have resigned.

I’ve been working from home during the pandemic. Shouldn’t my employer continue to let me work from home?

If you have concerns about returning to work and had been able to work from home previously without issue, ask your employer whether you can continue until the number of cases is no longer climbing.

In some provinces, the government may have work-from-home measures in place that require employees to work remotely where possible.

READ MORE: Returning to the office after working remotely? Here are 5 things you should know

Even if you are not able to work from home, in my experience, many employers are willing to work cooperatively with employees to resolve any concerns about returning to the office.

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It’s important to recognize that it’s up to you as the employee to raise concerns and propose reasonable solutions so that your employer can decide how to address the issue. Your employer may not know about your personal circumstances, such as living with a vulnerable person, so they can’t respond to your concerns until you bring attention to them.

My child’s school is closed due to Omicron. Can I be fired if I need to take time off work to look after them?

Your employer can’t let you go if you need to care for a child at home because Omicron has forced schools to close. Human rights legislation requires employers to accommodate employees who require it to fulfil family- and caregiver-related obligations.

I usually recommend that employees explore options for daycare or child care so they can demonstrate those efforts to the employer when making a request for accommodation.

Reasonable accommodation could include things like the ability to work from home, or a change to your work schedule or hours of work. Employers who ignore their duty to accommodate risk a human rights violation, resulting in compensation for the worker.

READ MORE: Can you stay home from work if your child doesn’t return to school during COVID-19?

Do you have questions about your employment rights during the Omicron wave?

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

Madelena Viksne is an employment lawyer at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.

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