From Templeman LLP:

Workplace Reopening Q&A

I am ready to recall my employees from layoff – how do I do that?

The process to recall employees from a layoff may be dictated by whether you are a unionized workplace or not. If unionized, the collective agreement will typically include an article that will set out how layoffs and recalls will function, including how notice is to be given and the order in which employees return, which is usually based on seniority.

If you are not a unionized workplace, the proper process to follow may depend on your specific circumstances and the process through which layoffs were first administered. In general, recalls should be done in writing and a specific date for the recall should be set. It is advisable to make sure that employees have reasonable prior notice of the recall date. Employers may be expected to return an employee to the position he or she last held prior to the layoff, and any changes necessitated by changed circumstances should be communicated.

Under what circumstances can an employee refuse to return to work, and how do I respond?

There are several circumstances in which an employee may validly refuse to return to work. If the employee has specific concerns related to the health and safety of the workplace, and he or she is not part of a special class of excluded employees, the employee may engage in a work refusal under the Occupational Health and Safety Act (OHSA) when the employee has reason to believe that he or she, or in some cases another worker, is likely to be endangered by:

• any equipment, machine, device or thing that the employee is to use or operate;
• the physical condition of the workplace or part of the workplace in which the employee works;
• workplace violence; or
• or the use of any equipment, machine, device or thing in a way that contravenes the Act.

In the case of COVID-19, complaints would likely be grounded in the second point, the “condition of the workplace”.

If an employee refuses to return to or perform work citing unsafe working conditions, employers will be expected to follow the OHSA work refusal process, which includes investigating the refusal and advising the Ministry of Labour if the investigation and any remedial steps taken do not resolve the issue.

Employees may also decline to return to work if they meet the criteria for a leave of absence under the Employment Standards Act, 2000 (ESA). It is important to remember that the special emergency leave related to COVID-19 remains in effect for employees impacted by COVID-19 in a variety of ways, including if they cannot return to work due to childcare obligations.

Employees may also be justified in refusing to return if they have special circumstances such that insisting on their return to work could amount to a human rights violation. While employers should adopt a return to work policy or procedure and strive to apply it evenly and fairly across their workforce, individual refusals to report to work must be evaluated on a case by case basis.

Will my employees remain eligible for the CERB if they resume work?

An employee does not need to remain on layoff to access the Canada Emergency Response Benefit (CERB), provided they meet the established eligibility criteria. However, an employee may be ineligible if he or she earns more than $1,000 in a CERB eligibility period. If an employee is recalled during the first four-week period he or she applies for the CERB, the employee would be required to pay back the $2,000 benefit if he or she earns more than $1,000 for 14 or more consecutive days within the four-week benefit period claimed. If the employee is recalled during a subsequent period, he or she cannot have earned more than $1,000 for the entire four-week benefit period. The $1,000 income threshold includes employment and self-employment income, and encompasses tips, non-eligible dividends, honoraria, and royalties earned during the benefit period.

If employees are approaching you with questions about how a recall will impact CERB entitlement, it is generally best for you, as their employer, to decline from giving advice that may have financial and tax consequences for the employee. Employees should obtain that guidance from the CRA or their own financial or legal advisors.

For more on the CERB eligibility and income requirements, see:

https://www.canada.ca/en/services/benefits/ei/cerb-application/questions.html

If I am not in a position to recall my employees, how long can I keep employees on layoff?

Assuming that layoffs were validly implemented to begin with, further to a preexisting agreement between the parties or with the consent of the employee, a temporary layoff under the ESA is capped at 13 weeks in any consecutive 20-week period. Note that this does not require the layoff to last for 13 consecutive weeks. This may have implications if you are planning on recalling employees for a short period and then returning them to layoff.

Where certain criteria set out in the ESA are satisfied, such as continuing employee benefits, that period can be up to 35 weeks in a 52-week period.

After the period of a temporary layoff has ended, the employee is deemed to have been terminated under the ESA which may trigger termination pay obligations for you.

Layoffs that were not validly implemented pursuant to an employment contract or collective agreement may also lead to additional liabilities such as constructive dismissal claims.

Interestingly, British Columbia has recently passed legislation to extend the 13-week threshold to 16 weeks for layoffs relating to COVID-19, if the employee agrees. Ontario has not yet indicated whether it will take similar steps.

I’ve heard that the Ministry of Labour is stepping up inspections. How do I ensure that I am compliant with current workplace health and safety requirements?

At a minimum, employers should continue to follow public health advice and ensure that any reopening or relaxing of restrictions are consistent with the Government’s current emergency orders under the Emergency Management and Civil Protections Act. The Government has also now published over 90 sector-specific health and safety guidelines and workplace information posters. Employers should review and implement these guidelines as applicable, and would also be well served to display the posters and other health and safety association publications where appropriate.

The guidelines and other association resources can be accessed through:

https://www.ontario.ca/page/resources-prevent-covid-19-workplace

As the economic reopening stages progress, employers should continue to regularly consult Ontario’s centralized information site, https://covid-19.ontario.ca/, for updates and may wish to consult with industry or trade associations and with legal counsel for further direction.

While the public health risks persist, employers should position themselves to raise due diligence defences by tracking and complying with public health guidance.

Are there certain policies or procedures that should be in place before I begin bringing people back into the workplace?

The answer to this question is going to be very contextual and specific to your workplace.

As a starting point, employers should consider updating existing workplace health and safety policies to include policies and procedures specific to infectious disease.

It is also advisable to consider whether policies relating to sick time, reporting sickness, and/or the requirement for medical notes need to be revised. As indicated in previous Handouts from the Templeman Labour & Employment group, employers have to balance their obligation to safeguard the health and safety of their workforce with the general duty to safeguard the confidential medical information of employees. If you do not have a procedure that directs employees on the confidential reporting of health concerns, and/or a sickness or accommodation policy that deals with how you approach time off work when an employee is ill, adopting such policies could assist management in dealing with any issues that arise.

Employers may also see an increase in workplace harassment and discrimination complaints, as employees take issue with management requiring them to return to work or prompting them to do work that they don’t want to do. Under the OHSA, employers are required to have a policy on workplace harassment. Employers should ensure such policies are in place, and confirm that they include a procedure for dealing with complaints.

In a unionized workplace, an employer may have an obligation to consult with the union and/or a joint health and safety committee before introducing or amending policies. In the non-union context, employers should ensure that any updates and changes are clearly communicated to and acknowledged by employees.

Will I be liable if I recall an employee and he or she contracts COVID-19 in the workplace?

If you are an employer who is required to or who has opted into providing WSIB coverage, the WSIB has confirmed that it considers COVID-19 a compensable occupational disease, where applicable criteria are satisfied. What this means is that, in general, an employee will have a right to claim WSIB in relation to his or her illness, in lieu of a claim or right of action against his or her employer.

The WSIB has released a document clarifying how COVID-19 specific claims will be approached. Each claim will be determined on a case by case basis, and decision-makers will consider whether:

1. the nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed; and

2. the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.

If these considerations are satisfied, the WSIB has indicated that they will constitute persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness.

For more on WSIB claims, see:

https://www.wsib.ca/sites/default/files/2020-03/adjudicativeapproachnovelcoronavirus.pdf

We continue to encourage employers to actively monitor their workplaces and to follow pubic health and governmental directions to the greatest extend possible to minimize the risk of a health and safety liabilities. What this looks like will be different for every workplace, but before reopening employers should think through the details of physical distancing, sanitation measures, and whether any PPE is required for employees, so that those considerations have been addressed and the proper equipment is in place before people return.

RESOURCES

For up to date information, the following resources may be of use:

Government of Canada

https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

Government of Ontario

https://covid-19.ontario.ca/

https://news.ontario.ca/newsroom/en

Ontario Hospital Association

https://www.oha.com/news/updates-on-the-novel-coronavirus

This summary does not constitute legal advice. Please feel free to contact your Templeman LLP lawyer with respect to specific plans for your workplace.