Labour and Employment Law Blog

In our earlier two blog posts, Returning the Workplace to Safe Operation: Part 1, Part 2, we addressed the occupational health and safety issues surrounding returning the workplace to safe operation. This blog post addresses the employment issues related to managing the return of employees to the workplace from temporary layoff or working from home. Beyond advising employees of the recall, employers should also be prepared to address the responses received from employees when they are told to return to work.

Recall

For employees who are on temporary layoff, notice of recall should be in accordance with applicable employment standards legislation, if employees are non-union, or in accordance with the terms of the collective agreement, if employees are unionized. Recall under a collective agreement is usually in order of seniority but the specific terms of the agreement should be reviewed.

Recall in a non-union setting is not required to be by seniority but may be in any order the employer determines so long as the order of recall is not discriminatory under human rights, employment standards, or workers compensation legislation. Although the B.C. Employment Standards Act does not prescribe the terms of a recall notice, the employment standards legislation in some other jurisdictions, for example Alberta, may prescribe the length of advance notice to be provided to employees of the recall to work. Employers should ensure that the recall notice complies with the applicable legislation.

Although not on layoff, employees working from home should be advised of the return to workplace process. All employees should be informed of the employer’s safe operation plan as detailed in our earlier posts. If schedules or days of work are to be changed as part of the safe return process, the employer should ensure these changes are not contrary to the terms of any employment contracts or collective agreements.

Employee Responses to Recall Notice

Employers who are advising employees of the return to work have been receiving a variety of responses: some employees are pleased and eager to return to the workplace; some employees are generally apprehensive about the risks associated with COVID-19 and are reluctant to return; some employees have personal characteristics or circumstances which restrict their ability to return to the workplace; and some employees would prefer not to return to work at this time, particularly while the Canada Emergency Response Benefit (CERB) remains available. We will address the last three of these situations.

I am worried about contracting COVID-19 at work

If employees are apprehensive about the possible risks of contracting COVID-19 when returning to the workplace, education about the employer’s safe operation plan and its compliance with public health authority orders and guidance should help address those concerns. However, if the employee is refusing to work because they believe the work is unsafe, then the employer must follow the unsafe work refusal process under workers compensation legislation. This process will be discussed in detail in a separate blog post.

I can’t return to work because of my personal situation

Some employees may express an unwillingness or inability to return to work due to personal characteristics or circumstances. These restrictions should be explored and the employer should determine whether a leave under employment standards legislation would apply or if the duty to accommodate under human rights legislation is engaged.

• COVID-19 leave

B.C., like other jurisdictions in Canada, has implemented a job-protected COVID-19 leave. Employees are eligible for this unpaid leave if they are unable to work for any of the following reasons:

• They have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse;
• They are in quarantine or self-isolation and are acting in accordance with an order of the provincial health officer, an order made under the Quarantine Act (Canada), guidelines from the BC Centre for Disease Control or guidelines from the Public Health Agency of Canada;
• Their employer has directed them not to work due to concern about their exposure to others;
• They need to provide care to their minor child or a dependent adult who is their child or former foster child for a reason related to COVID-19, including a school, daycare or similar facility closure; or
• They are outside of B.C. and unable to return to work due to travel or border restrictions.

If eligible, the employee is entitled to the leave for as long as the reason applies. The employee is not required to provide a medical note but may be requested to provide reasonably sufficient proof that one of these circumstances applies to the employee. As a job-protected leave, the employee is entitled to return to their position or a comparable position at the end of the leave. Service is deemed to be continuous during the leave and the employer must continue benefits if the employer pays the full cost of the plan or, if applicable, the employee chooses to pay their share of the cost.

• Duty to accommodate

Some employees may refuse to return to work because of characteristics protected under human rights legislation such as age, disability, or family status. For example, an employee due to their age or an underlying disability may be in a vulnerable population group for contracting COVID-19 and return to the workplace is not advised. Or the employee may be the caregiver for children or elderly or dependent family members and alternative care arrangements are not available.

In these situations, the employer will need to obtain sufficient information from the employee to determine if the duty to accommodate applies and if so, then engage in the accommodation process with the employee and union representative, if applicable. Possible reasonable accommodations may include: enhanced personal protective equipment; increased physical distancing measures in the workplace; changes to hours of work; alternative work duties; job sharing; or working from home. Where working is not possible, the employee may be eligible for sick leave or disability benefits or may be placed on an unpaid leave of absence. The employer’s obligation is to provide a reasonable accommodation not a perfect one and to accommodate up to the point of undue hardship.

In terms of family status claims, the duty to accommodate is interpreted more narrowly in B.C. than in other jurisdictions. In any of these situations, but particularly family status, we would advise obtaining legal advice as to the employer’s obligations.

I prefer just to stay home

Some employees do not fall into any of the situations described above but have expressed that they do not want to come back to work at the present time, preferring instead to stay home and continuing to receive CERB payments. In these situations, the employer may have grounds to end the employment relationship for job abandonment. The employer should first communicate with the employee regarding their individual circumstances and determine whether any other options would apply including a job protected leave or an accommodation or if the employee is making an unsafe work refusal. If these are not applicable, the employee should be clearly warned about the consequences of not returning to work as scheduled. The employer may also choose to advise the employee that given that work is available, a revised record of employment will be issued and the employee may be required to repay some CERB payments. We would recommend that employers obtain legal advice before proceeding with dismissal for job abandonment.

Privacy considerations

Due to the COVID-19 environment, employers may be requesting and obtaining more personal information from employees than is usual in order to navigate the various workplace scenarios. Employers should keep in mind their privacy obligations to only collect, use and disclose the personal information that is reasonably necessary. In particular, employers may be obtaining health information related to employees and their families. Employers may wish to consider that a designated person or position be responsible for collection, use and disclosure of this information and ensure that appropriate security and confidentiality protections are put in place.

Please watch for subsequent blog posts on the return to work process including what to do if an employee makes an unsafe work refusal or if an employee is diagnosed with COVID-19.

If you would like more information about managing the return of employees to the workplace, please contact Deborah Cushing, Michelle Jones, or another member of Lawson Lundell’s Labour, Employment & Human Rights Group.