Employers face challenges enticing employees back

More businesses are being allowed to open their doors. Businesses that were never closed, because they were deemed an essential service, are trying to get all of their workers back to work as things pick up.

But, who can refuse and stay home without their job being in peril? As necessary as the emergency funds are that the federal government is making available to people, they have taken away some of the economic motivation for people to go back when called back.

Recent changes to the Employment Standards Act give protection to some people who refuse to go back to work. They include individuals who have no child care options. Right now, for the most part, only home based daycares are permitted to continue running and, of course, schools are closed at least until the fall. Overnight summer camps are starting to announce that they will not be open this season and it is uncertain if day camps will be functioning or to what extent.

That puts most parents between a rock and a hard place. Employers will simply have to accept an employee’s absence.

People can refuse to come to work if they have been told specifically by government authority to isolate, or if they are following a general directive issued by a recognized authority. This becomes very confusing. People are still being told to stay home if possible.

But what does “if possible” mean?

Under the new Employment Standards Act changes, in order to justify a leave because of COVID-19, there must be some particular circumstance relating to you that requires you to stay home. Perhaps somebody in your immediate family has tested positive and you have been in close contact. That would qualify.

When the government brought in this legislation, they also indicated that employers are not allowed to ask for a medical note to justify a COVID-19-related leave of absence. This does not leave employers with a lot of options.

I have advised more than one employer in the last few weeks about anxious employees. They are not in a high risk group, but they do not want to come back to work because they are worried about getting sick. Sometimes they say they are worried that the employer will not be able to provide a safe environment.

The employee’s obligation in that situation is to return to work and if they think the employer is not taking the appropriate precautions in the workplace, file a complaint.

The employee can contact the Occupation Health and Safety Branch of the Ministry of Labour who will do an investigation. More than 20 of these have been filed so far in the Hamilton area and few, if any, have succeeded. That may be a sign that employers are doing what they can and taking the situation seriously.

Employers that contravene this new legislation will be subject to fines and orders for reinstatement of the employment, sometimes with back pay if enough time has gone by.

If an employee does not have a legally recognized reason to refuse to return, the employer must warn them clearly and in writing that a failure to show up will lead to termination.

Potentially, on one side of this issue, you have employees who are extremely anxious about exposing themselves to the virus.

On the other side, you have employers that need people to return to work so that the business that employs them and all of their co-workers can survive this crisis.

I think it is impossible for either side to claim the absolute moral high ground.

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com

For more employment law information; hamiltonemploymentlaw.com