 |
| Stuart Rudner |
Many were laid off or put on a form of leave due to the COVID-19 pandemic, and many others have been working from home. As we continue to progress toward “back to business,” we are seeing businesses directing their employees to return to the workplace, recalling them from layoff/leave or ending their work from home. Surprisingly, they are encountering quite a lot of resistance, with workers indicating they’re “not ready to come back yet,” prefer to work from home or want to come back when the CERB comes to an end.
Our firm has been working with both employers and employees to help them understand their rights and obligations in these unusual times. We have participated in countless webinars, panels, Q&A discussions and other efforts to educate the general public, including answering listener questions on 680 News. By far the most common question that we have encountered over the past few months is: “Do I have to go back to work when I am recalled?”
So, what’s the answer? In the vast majority of cases, it is a simple “Yes.” Work is not optional or voluntary. Of course, you can’t be forced to work, and the option to resign is always open, but generally speaking, refusing to attend at work will lead to the end of the employment relationship. As I have said repeatedly, that is as true now as it was in pre-pandemic days.
Similarly, workers do not normally have the right to dictate where they will work. Although they may have been working from home for the past few months, that does not create a right on their part to insist that they will continue to do so. That is true even if they are able to work effectively and efficiently while remote, though we do encourage our corporate clients to continue allowing employees to work from home for now if it is viable to have them do so.
There are only three exceptions to the requirement that someone return to work:
1. A COVID-19 related leave of absence;
2. Entitlement to accommodation pursuant to human rights legislation; and
3. The right to refuse unsafe work.
Accommodation and leaves of absence
The first two exceptions are based on need, as opposed to preference. While every province is different, most workers across the country have access to some type of leave of absence if they are unable to work due to COVID-19. Similarly, human rights legislation requires accommodation of employees where there is a legitimate need for such accommodation in relation to a protected ground such as disability or family status. Both entitlements would apply, for example, to someone who suffers from a medical condition that makes them particularly susceptible to the virus, or someone that must stay home due to childcare obligations.
We have had to remind people that the duty to accommodate is not unlimited. It extends to the point of undue hardship, and it does not necessarily mean that the person seeking accommodation is entitled to choose how they will be accommodated. Workers that insist that they will simply remain off work, or continue to work from home, can be in for a surprise when they find that their employers have other ways to accommodate their needs. In one case, we worked with an employer that had an individual who could not use public transportation during rush hour due to a medical condition and had asked to stay off work until the pandemic was over. However, they were able to be accommodated by having their hours modified so they would not be travelling during peak times.
Refusing unsafe work
The right to refuse unsafe work allows an individual to refuse to work if their workplace is not safe. It does not relate to general fears, anxieties or concerns of being out in public or travelling to work. There must be a specific and objective safety risk in the workplace in order to invoke this right.
If the employee and employer cannot agree, then a Ministry of Labour inspector will be assigned to assess the situation. Notably, although there have been many recent complaints, very few have been upheld.
Some open questions
Some interesting issues have, or will, arise. For example, since many school boards are offering parents the choice of having their children attend school in person or remotely, can an employee who chooses to have their child attend school remotely claim that they are unable to work and/or need accommodation due to childcare obligations? Another question that arises often is how to handle an employee who must travel to work using public transportation but is concerned about the increased risk of being exposed to the virus. Since the danger is not in the workplace, this would not trigger the right to refuse unsafe work, but there may be a duty to accommodate in some circumstances. Furthermore, employers may want to assess options to help the employees in these circumstances.
The bottom line
Attending at work is not optional. Unless an employee falls within one of the exemptions above, employers are within their rights to insist that they physically attend at work.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or stuart@rudnerlaw.ca.
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.