As Canadian businesses begin resuming operations, many employees will be returning to workplaces that have been changed by the pandemic. Among the first hurdles employers will face when reopening is recalling employees who have been on temporary layoffs or working from home.
Ryan Wozniak, senior vice-president of legal and operations at HR consultancy Peninsula, advises on how employers can fairly and safely recall employees while protecting their business.
Employers should know about the human rights and employment law risks involved in recalling employees and should develop a recall plan. As a start, employers should be careful not to go beyond the maximum permissible temporary layoff length allowed in their province.
“Layoffs that extend beyond the maximum length permitted by applicable employment standards legislation are deemed to be terminations of employment. In these circumstances, employees are not really being recalled to work – they are being rehired. Employers will be required to pay employees termination pay but might be able to mitigate the risk of owing further damages by offering the employee their same job back with the same terms and conditions of employment”, Wozniak advises.
Review employment contracts
As many businesses will likely face changes to their working conditions, it is especially important for employers to review employment contracts to determine whether they have contractual rights to change fundamental terms and conditions of employment.
“If the employment contracts do not permit changes, and the employer makes them anyways without the employee’s consent, the changes may amount to constructive dismissal. A constructive dismissal claim may lead to the employee resigning and claiming damages as if they had been dismissed”, says Wozniak.
To protect their businesses, employers should strive to recall employees to the same or substantially similar terms and conditions of employment they had prior to the temporary layoff and should be aware of making changes without contractual rights or employees’ consent.
Discrimination, duty to accommodate
Employers should also be aware of their obligation not to discriminate against employees and their duty to accommodate employees under human rights legislation.
“Employees should be recalled based on objective criteria, such as seniority, the order of layoff or regular work schedules. This is to protect the business against allegations by employees that they were discriminated against by not being selected for recall due to a characteristic protected by legislation”, Wozniak advises.
Business owners should also acknowledge any special considerations which might affect an employee’s ability to return to work, such as disability or concerns about returning to work due to an increased risk of severe complications if they contract COVID-19.
“It is possible that COVID-19 could be considered a disability for the purpose of human rights legislation. Employers may be required to accommodate vulnerable employees by continuing work from home arrangements or allowing employees to remain off work”, says Wozniak.
Recall notice must be given in line with provincial requirements and far enough in advance that employees can make arrangements for their return to work. If employees are reasonably unable to return to work on the specified date, employers should offer flexibility in respect of the return to work date.
When recalling workers back to the workplace, employers are advised to assess their workplace capacity, implement measures for preventing the spread of COVID-19, and to take a phased approach to the return to full capacity.
Kristina Vassilieva is an HR writer at Peninsula in Toronto. For more information visit https://www.peninsulagrouplimited.com/ca/
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