National Post (National Edition)
When offices reopen staff must return if required to do so.
Can a company force its employee to work from home if the employee has no space or equipment at their residence, asks one anxious Ontario worker? To add to the twist, the office is open and deemed an essential service.
Such questions are becoming commonplace as companies and their employees navigate through the complex labyrinth of rules, preferences and business compulsions.
To answer that question: An employer has no right to require an employee to work from home if there is no government order and the employer remains open. Indeed, forcing employees who were working from the office to operate from home, or inversely, forcing employees contracted to work from home to come to the office is normally considered a constructive dismissal.
It is different if they are being asked to work from home because of the pandemic and the situation is considered inherently temporary. However, when offices reopen, an employee will be unable to insist on continuing to work from home, however productive they may have been, if the employer requires them to return to their usual places of business. Refusing to return will be abandoning their employment and cause for discharge.
Here are a few other questions I received over the past few weeks that highlight the complexities of operating in a pandemic:
Q: If I invest in the stock market and got laid off, can I still get Employment Insurance?
A: Investment income is not income from business or employment for EI purposes. It might be argued otherwise if you were a professional trader.
Q: What can I do if my employer gets subsidized by the Feds, but still does not hire anybody?
A: The employer obtaining a wage subsidy creates no rights for employees as the matter is between the employer and the government. Obviously, if the employer obtains the subsidy and does not use that amount toward wages, that would be a fraud. But, again, it does not provide an individual employee with any claim against the employer.
Q: I work for an essential business. Should I carry a letter when travelling to the office?
A: If you are permitted to work during the emergency period, some of my clients are providing letters to their workers so they can show proof if they are stopped by the police and asked about whether they are violating the shutdown order.
Q: One of my employees came back from maternity leave, but her role is no longer required. However, another new job has emerged, with the same pay and schedule. Do I have any requirement to provide the same job upon her return?
A: An employer is supposed to reinstate an employee to their role pre-maternity leave and cannot replace them with anyone else, including their maternity leave replacement. If that role genuinely no longer exists in the company, then they are required to reinstate them to a comparable position, at the same pay and working hours.
Q: My son was let go for `insubordination' and not given any severance. Is this the same as `disobedience' under the Employment Act?
A: The point is not the technical definition of the term, but whether there was sufficient wilful misconduct as to be cause for discharge and if sufficient warnings were provided. To answer your direct question, disobedience is defying an order and `insubordination' is rudeness or provocative behaviour toward your superior.
Q: I am a contract worker who went on parental leave in April 2020 and was supposed to return to work in February 2021. When I contacted my boss this week I was told there is no place for me as the temporary employee hired to cover me is staying on due to projects that were set up while I was away. It looks like I will not have my position at the end.
Do I have any legal recourse or entitlements? I understand contract employees have very few rights.
A: If you were on parental leave, you are entitled to your position back upon your return and cannot be replaced by anyone else. The fact that you were on a contract is irrelevant.
But if your contract had expired before your return, you have no right to return at all.
Q: My son is an auto mechanic in Ottawa and says his employer (a large auto dealership) is keeping all its mechanics on the job even though they have little work due to the current lockdown imposed by the government of Ontario. He has to stay at work for 10 hours daily but is only paid for about two hours because he is a flat-rate tech worker, i.e. he is paid for each job he performs rather than hourly. Is his employer allowed to do this?
A: He is paid by the job, not two or 10 hours so, unless that works out to less than the minimum wage of $14 an hour or $140 a shift (assuming a four-day, 10-hour a day schedule), he has no recourse.
Got a question about employment law during COVID-19?
Write to me at levitt@levittllp.com. Howard Levitt is senior partner of LSCS Law, employment
and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.