National Post (National Edition)
Can my employer order me to return to the office before we are all vaccinated?
THE LAW ACCOMMODATES SAFETY, NOT ANXIETY. ASSUMING THE EMPLOYER IS COMPLIANT WITH PUBLIC HEALTH GUIDELINES, IT HAS EVERY RIGHT TO REQUIRE ITS EMPLOYEES TO RETURN TO THE OFFICE FULL TIME. — HOWARD LEVITT
Areader wrote recently about her employer insisting she returns to the office even though the entire staff is still not vaccinated. She believes masks provide limited protection from COVID-19 and she has been very productive working from home. She is anxious and wonders whether she can refuse to return to the office.
Unfortunately for her, the law accommodates safety, not anxiety. Assuming the employer is compliant with public health guidelines, it has every right to require its employees to return to the office full time.
Another reader wanted to know whether his employer can require staff to vaccinate (when vaccines are available) before returning to the company's manufacturing facility.
Again, unless members of staff have legitimate religious or medical exemptions, in my view the company will be able to require vaccinations, assuming employees are working relatively closely together. Obviously, there is no court case yet involving the COVID-19 vaccine, but once public health recommends it, the law will surely follow.
Here is a sample of the other questions I received over the past few weeks related to the pandemic and beyond.
Q I am burned out as are all my coworkers. Can we force the employer to hire more employees?
A No. You can only work your regular hours and refuse continued overtime and work at a reasonable level, as in the past, during your hours of work. But how many employees the employer hires are entirely within the domain of the company.
Q I was laid off but continue to have my medical benefits. Is that still considered a constructive dismissal?
A Any reduction in earnings above 16 per cent is a constructive dismissal. Employers often continue benefits because in the employment standards legislation, continuing benefits permits a longer layoff period i.e. 35 versus 13 weeks in Ontario under the Employment Standards Act. What is significant is that any layoff is a constructive dismissal if one were to sue in court in most provinces, regardless of it being permitted in the Act. The fact that it is a permissible layoff under the minimal employment standards legislation provides the employer no protection if they are sued.
Q My sister worked a union job for 16 years. Now that the job is gone, what is she entitled to in terms of severance? A If you are in a unionized bargaining unit, the law of dismissal, wrongful or constructive, does not apply. You can be laid off without recourse pursuant to seniority regimes. If the layoff is permanent, in most collective agreements, you are limited to the employment standards minimum termination and severance pay rather than wrongful dismissal damages. Some unions negotiate more. Q The family business I work for has been sold. My new employers want me to sign away my seniority rights of 25 years. Is this enforceable? Am I starting from scratch now?
A You cannot sign away your length of service for employment standards purposes, but you could be asked to sign a contract limiting you to only your employment standard entitlements based upon your combined length of service. You will then forfeit your much greater damages for wrongful dismissal.
Q I was on temporary layoff until Jan. 4 that I had agreed to in writing. My employer has not responded to my messages since then. What are my next steps?
A If the employer laid you off only until a certain date and you accepted, your right to sue revives after that date. However, if you do not take action then, or a very short time thereafter, you will lose your right to sue again until other staff members are recalled, and you are not or until the period for layoff under employment standards legislation expires. That has been extended so long in Ontario that you could be waiting until mid-2023 to have the right to sue.
Q I had been on long-term disability for 18 months and now ready to return to work. My schedule was set for weekdays and weekends. What is my company's obligation to give me the same or similar schedule when I return?
A You have a presumptive right to return to your previous terms of employment in all respects upon recall if that job/shift still exists and the employer is not gerrymandering the position to avoid providing it to you.
Q: Is there a deadline by which I must have employees sign an employment contract? A To be enforceable, an employee must sign the contract upon acceptance of the offer. If you agree to all the terms and then the employee later signs it, say on their first day of work, then the contract will not be enforceable unless the employee was given something “new” such as a raise or bonus in return for signing the contract.
In addition, if the employee is signing a new contract with punitive terms, those terms must be clearly brought to the employee's attention to be enforceable. This point was made in the recent Supreme Court of Canada case, Matthews vs. Ocean Nutrition, in which I acted.
Q My company is changing our shifts in two to three months, but I haven't received anything in writing yet. Are they legally obligated to put it in writing and can I decide not to accept this change and sue for constructive dismissal? I am 56 years old and have worked at the company for 37 years operating heavy equipment.
A It would depend how dramatically the shift was changed. If it's a significant change and you have never worked that shift before, then it would be a constructive dismissal. Many employers contract for the right to change shifts to avoid just that.
Q I am a graphic designer and want to leave my employer to freelance. How long do I have to wait before I can solicit the clients I used to work for?
A If you did not sign an enforceable non-competition (few are) or non-solicitation clause and you are not a fiduciary, i.e. a senior executive in which the employer reposed considerable trust, then you can solicit your former clients immediately. That's the very reason why employers should consider such non-solicitation clauses for employees that could pose a threat to their business.
Q I am a server at a restaurant and the owner takes our tips for any shortages from the receipts. Can he do that? A None of an employee's wages can be taken against losses without their written consent and cogent evidence that you caused that loss. As well, tips cannot be taken by the owner for any reason, unless there is a tip-sharing arrangement, and the owner is an active worker who can share in the tips.
Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of LSCS Law, employment and labour lawyers.