COLOURS OF THE LAW

Getting back to BUSINESS HR law issues you need to be aware of

By Stuart Rudner, Leading Employment Lawyer & Mediator, Founder, Rudner Law

Now that Canada is opening back up, business owners are finding themselves facing new and challenging issues. Are there rules about who you have to bring back and when? And what if someone refuses?

Our firm has been trying to help everyone 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, and I answer listener questions on 680 News. By far the most common question that we have encountered over the past few months is some variation of “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. 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, it 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.

Surprisingly, many employers underestimate their rights and are scared to insist that employees must return to the workplace, even when there is no reason that they can’t. That is where Employment Lawyers like our firm come in: we will explain your rights and obligations so you can make an informed decision.

Employees refusing to return to work

Without a legitimate reason to refuse to work, an individual is at risk of losing not only their job, but their access to government benefits, which are only available to those who cannot work. -->

There are three legitimate reasons to refuse to return to work:

01 LEAVE OF ABSENCE

A leave of absence is a job-protected period of unpaid leave, such as pregnancy/ parental leave. Most provinces have implemented some form of leave of absence for individuals who are unable to work due to COVID-19. For example, those with medical conditions that render them immunocompromised or those with childcare obligations.

02 ACCOMMODATION

Each province features its own human rights legislation which entitles workers to be accommodated for various personal characteristics, such as disability or family status (which includes childcare obligations, to the point of undue hardship).

In the context of both leaves of absence and accommodation, there must be a need as opposed to a preference. Many claims for failure to accommodate childcare obligations, for example, fail when the complainant cannot show that there were no other viable options.

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. Employers can be proactive by offering options to the employee, such as modified hours, on-site daycare, or other ways to allow the employee to work while addressing any limitations they may be experiencing. The focus is on allowing people to work, not letting them stay home.

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 traveling during peak times.

The return to school

Many school boards are offering parents the choice of having their children attend school in person or remotely. It is also very likely that there will be outbreaks in schools, and children will be sent home. So how do you handle an employee that asks to stay home with their children in these scenarios? The bottom line is that employees may not have a right to accommodation, especially if they cannot show that they had no other choice.

Another question that arises often is how to handle an employee that 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.

03 REFUSING UNSAFE WORK

Employers have a duty to provide a safe work environment for their employees. Individuals therefore have the right to refuse to work if there is a specific and objective safety risk in the workplace. A Ministry of Labour inspector will be assigned to assess the situation if the employer and employee cannot agree on the safety conditions. It is important to note that, of the large number of complaints made, very few are upheld.

What to do?

If an employee refuses to return to the workplace, talk to them and find out why. If they have a legitimate reason, work with them to find a solution that works for both of you. Avoid assumptions; in some cases, you may be underestimating your rights and in others, you may be risking liability. And while it may sound self-serving, speak with an Employment Lawyer before making any decisions.

Once you make a decision, document it clearly.