Employees’ common questions about return-to-work answered
As the COVID-19 pandemic evolves in Canada, questions persist around what work will look like moving forward. Employees who have experienced temporary layoffs, and those who have adjusted to their work-from-home arrangements, will continue to navigate changing circumstances.
With this in mind, employment law specialist Sharaf Sultan of Sultan Lawyers Workplace Solutions answers employees’ pressing questions.
WHAT HAPPENS WHEN MY LAYOFF PERIOD ENDS?
You are entitled to return to your role under the same terms that applied prior to your layoff. Further, laid-off employees who are recalled will get credit for any additional months or years of service relating to the layoff period.
WHAT HAPPENS IF I AM ASKED TO RETURN TO A DIFFERENT JOB?
Employers are obligated to return you to a job appropriate for your tenure with the company, including the layoff period, and you’re entitled to all the rights and privileges associated with your position prior to your leave. If that doesn’t happen, and you don’t wish to return to a different position, you may be able to treat your employer’s actions as a constructive dismissal. Your employer would then be required to provide you with a severance package, including transitional support, in accordance with factors such as your seniority and skills.
WHAT HAPPENS IF I’M NOT CALLED BACK TO WORK?
If you are not recalled within the prescribed period under Ontario’s Employment Standards Act, 2000 and related regulations, you would be entitled to treat your employment as permanently terminated. This will trigger entitlement to transition support, including applicable termination and severance pay, in accordance with your tenure and salary, including the layoff period.
WHAT IF I WANT TO CONTINUE WORKING FROM HOME?
Unless there is a specific government order to the contrary, employers are within their rights to require employees to return to the workplace at any time. However, you may be entitled to refuse to return based on a legitimate ground, such as a lack of available personal protective equipment or social distancing rules in place, or Covid-19-related childcare obligations.
CAN MY EMPLOYER REQUIRE I HAVE A VACCINATION BEFORE RETURNING TO WORK?
We expect this will be a contentious issue, simply because vaccination is a personal choice. The Canadian government has not implemented mandatory vaccination requirements, nor has it expressed an intention to do so.
Further, while employers have a duty under Ontario’s Occupational Health and Safety Act to provide a safe workplace, it will likely be difficult to demonstrate this extends to enforcing vaccination policies.
An employer may be required to accommodate individuals who choose not to be vaccinated by, for example, allowing them to continue working from home or implementing alternative safety measures.
IF I’M IN DOUBT ABOUT MY EMPLOYER’S ACTIONS, WHAT SHOULD I DO?
Not every dispute must result in a lawsuit, but it’s important to be informed about your rights as an employee. We encourage employees and employers to work together to discuss any issues or concerns. We also encourage employees to reach out to experienced employment law counsel to assess your options.
Learn more about your rights as an employee by visiting sultanlawyers.com or calling 416-214-5111.
THIS STORY WAS CREATED BY CONTENT WORKS, POSTMEDIA’S COMMERCIAL CONTENT DIVISION, ON BEHALF OF SULTAN LAWYERS WORKPLACE SOLUTIONS.