A Guidance on How to Recall Employees to Work from a Temporary Layoff

With the community transmission of Covid-19 cases slowing down and vaccination program gradually rolling out, more and more businesses are starting to consider whether they should recall part or all of their employees back to work after a temporary layoff. In this blog, we would like to answer some common questions in connection to this issue.

Q: What is a recall?

Recall refers to a process that employers bring back to work those employees after a temporary layoff. The relevant statutory provisions in the Employment Standards Act, the layoff clauses in the employment contract (if any) or applicable company policies usually govern the process.

Q: when should an employer start recalling employees back to work?

It depends on each employer’s specific situation. They should fully consider their business needs before proceeding to recall their employees back to work. Employers need to consider whether there is enough work for the recalled employees to do. They also need to fully assess whether they can observe the recommended government health guidelines so that they can offer their employees a safe work environment. In addition, employers should also fully consider the changes to the statutory temporary layoff provisions in the Employment Standards Act (the “ESA”) before they make a decision about recalling their employees back to work.

While the temporary layoff provisions normally restrict the amount of time an employee can have for a temporary layoff before being considered as terminated by their employer, the Infectious Disease Emergency Leave amendment to the ESA changed this. In this way, employees who experience a temporary layoff due to Covid-19 will be on a deemed emergency leave until July 3, 2021. During this period, employees are barred from bringing constructive dismissal claims under the ESA. However, they can still bring common law constructive dismissal claims to the court.

Q: Do employers have to recall longest-serving employees first?

No. Employers are generally free to recall employers in its preferred order as long as it does not do so in a discriminatory way. However, when deciding the order or whether to recall some employees back to work, employers should fully consider its implications to make sure that it will not be a breach of Ontario Human Rights Code on the basis of the prohibited grounds such as age or family status.

Q: How much notice should an employer give in advance before recalling employees back to work?

Absent any employment agreement or company policy stating the minimum recall period, employers need to provide a reasonable notice of recall before bringing the laid off employees back to work. What constitutes a reasonable notice varies. It is assessed on a case-to-case basis. However, the recall notice at a minimum should include the date that employees are expected to return and the location where employees report to work.

 

Q: What should an employer do if an employee does not respond to the recall notice?

If an employee fails to respond to the recall notice, the employer should take reasonable steps to make sure that the recall notice has been actually received. The employer could simply send multiple notices or try to use a different communication mode. If the employee still does not respond after the multiple attempts to reach them, the employer could consider sending a final recall notice, stating that any failure to respond to this notice by a certain date could be construed as resigning or in the alternative abandoning their employment.

Q: Can an employee refuse to return if he or she is recalled back to work after a temporary layoff?

When employees are recalled back to work after a temporary layoff, it is expected that they should return to work unless they have a legitimate ground to refuse so. For example, if an employee refuse to return because of their illnesses or childcare responsibilities arising from school closures, they have the right to do so.  Employers have an obligation to accommodate them. Any failure would amount to a breach of the prohibited grounds under the Ontario Human Rights Code.

Employers also have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act. If an employee refuses to return to work because of work health and safety concerns such as lack of Personal Protection Equipment (PPE), they are also entitled to say no to the employer. However, if an employee simply refuses to return to work without any legitimate reasons, the employer could treat the refusal to return to work as a resignation. In that case, the employee will not be able to claim any termination or severance pay.

Q: What other issues should an employer fully consider when recalling its employees back to work after a temporary layoff?

Employers have an obligation to take reasonable steps to make sure that the work environment is safe from hazard. When an employee has reasonable grounds to believe that the work environment is unsafe, they can refuse to attend for work even after answering the recall notice. Therefore, it is essential for an employer to fully investigate the work place hazard and observe the government health guidelines before recalling its employees back to work after a temporary layoff.

In addition, employers should also accommodate those employees who are unable to return to work because of having contracted Covid-19 or experiencing underlying health conditions that make them vulnerable to the virus. It is the same case with those employees who cannot make it to work because of child care responsibilities due to the closure of daycare centres and educational institutions. Employers should consider allowing these employees to work remotely if situations permit. Under the Ontario Human Rights Code, employers have a duty to accommodate these employees to the extent of undue hardship. It is strongly recommended that employers should consult a legal counsel before taking any adverse actions against the employee who fails to report to work based on the above-mentioned reasons.

If you are experiencing any issues in connection to employee recall after a temporary layoff, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

 

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