Written for Daily Hive by Ryan Wozniak, senior vice president of legal and operations, Peninsula.
For many Canadian businesses, reopening during the COVID-19 pandemic will bring new challenges and changes to operations. Workers who are on temporary layoffs or are working from home will soon start getting called back to their regular workplaces. To prepare and protect their businesses, employers should be aware of the employment law and human rights considerations when recalling workers.
If an employer wants to recall an employee on a temporary layoff and continue the employment relationship, the employer should be aware of the maximum permissible temporary layoff length according to their provincial employment standards legislation. Each province has a limit to how long a worker may be on temporary layoff, and if this limit is exceeded, their employment is deemed to be terminated. Employers should aim to recall employees within the permissible layoff period.
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Once the layoff period is exceeded and employment is terminated, employees who are recalled will technically have to be rehired. At this point, the employee will be entitled to termination pay and potentially other damages, even if recalled to work. Employers may be able to mitigate additional damages by offering the employee the same terms and conditions for the same job they had prior to the temporary layoff.
Making changes to terms and conditions of employment
Reopening during coronavirus will likely mean changes to the way businesses operate. Employers who find they cannot give their employees the same terms and conditions upon recall must be careful about how they make these changes.
Well drafted employment contracts should give employers the contractual right to change certain terms and conditions of employment according to business needs. In response to the coronavirus, employers with such contractual rights would be able to change employment terms and conditions such as work hours, salary, and job duties without risks to their business.
However, if the employment contract does not give the employer these rights, employers should only make changes to terms and conditions of employment with their employee’s consent. Making significant changes to fundamental terms and conditions of employment without the employee’s consent opens the business up to the risk of a constructive dismissal claim. Employees who claim constructive dismissal may resign and claim damages as if they had been dismissed without cause. For this reason, employers should try to recall employees to the same or similar employment terms and conditions and should be aware of the risks of making changes without the employee’s consent or a contractual right to do so.
Developing a recall plan
Recall plans help employers reintroduce employees to the workplace in a fair and safe manner while protecting their business. Recall plans should consider workplace capacity, recalling employees in stages, and implementing measures for preventing the spread of coronavirus in the workplace.
Workers should be recalled based on objective criteria, such as the order of layoff, regular work schedules, job function, or seniority. Without a clear and fair plan for recalling workers, businesses run the risk of discrimination claims from employees who are not satisfied with the order of recall.
When recalling workers, employers should provide enough notice so that employees can make return-to-work arrangements, such as arranging for childcare during school closures. Notice must be given according to provincial requirements and must state the date employees are expected to return to work. If an employee cannot return to work on that date for justified reasons, they should be given flexibility in selecting a return to work date.
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Human rights considerations
Employers must also be conscious of their obligations under provincial human rights legislation, which forbids discrimination on the basis of several protected grounds, including disability. The coronavirus may be considered a disability for the purpose of human rights legislation, a position that is already taken by British Columbia’s Human Rights Commissioner, Kasari Govender. Employers should, therefore, be mindful of special considerations that might prevent some employees from returning to work and accommodate such employees to the point of undue hardship.
Workers whose disabilities place them at a higher risk of complications if they are infected by the disease and may also be protected under human rights legislation and the employer may be required to accommodate such employees by, for example, allowing the employee to continue working from home or to remain off work until it is safe for them to return to the workplace.