Employers are encountering issues as they ask their employees to come back to work. We will take a look at some of these in today’s blog.

A Recap

Many employees were placed on layoffs in March 2020, when the shutdowns occurred. In Ontario, these layoffs were then converted into deemed Infectious Disease Emergency Leaves. While statutory layoff timelines normally restrict the amount of time an employee can be on a layoff before being considered terminated, in Ontario the Infectious Disease Emergencies Leave amendments to the Employment Standards Act changed this. Ontario employees can now be involuntarily off work (laid off) until January 2, 2020, without having a termination triggered.

A layoff does not end the employment relationship. It’s just a temporary pause, which anticipates that the employer will bring the employee back to work or recall them.

Recall

In Ontario, a recall notice does not have to take any specific form or give any specific amount of notice of the return to work. Generally, the recall notice should provide the employee with all the details they need in order to come back, for example the date of their return, their schedule etc. The terms of their employment pre-layoff should continue.

Ideally the employer is able to provide the pre-layoff job and the employee is ready and willing to come back. But what if this is not the case?

Recalling Employees to Different Jobs

When an employer changes an employee’s job, schedule, pay etc. post-layoff the employer faces the same risks they would have had they done this while the employee was actively at work – constructive dismissal. While the risk of constructive dismissal in Ontario has been somewhat abated by the Infectious Disease Emergency Leave regulation – which removes the risk of a statutory complaint of constructive dismissal for changes to pay or hours of work – the risk of a constructive dismissal complaint under the common law remains.

In the case of an employee asserting a constructive dismissal, the employee treats themselves as having been terminated and accordingly entitled to their termination entitlements – notice pay, severance pay, outstanding vacation pay etc.

If an employee does not actively disagree with the job changes and does return to work, the risk will lessen as after a reasonable period of time an employee who works under the new conditions will be deemed to have acquiesced.

Notably, the majority of employers who placed employees on layoffs in March did so without the contractual right to do so and accordingly have been in a potential constructive dismissal situation this entire time.

Employees Don’t Want to Be Recalled

In some cases, employees will have found other work while on layoff, or they may have reasons for not being able to return to work at the time of the recall. Some employees may not even respond to the recall notice.

  • No Response If an employee doesn’t respond, we recommend that the employer take reasonable steps to ensure that the employee actually got the recall notice. This may require following up with a different mode of communication or sending multiple notices. A final notice may contain a warning such as “if we don’t hear from you by X date, we will deem you to have abandoned your employment with us.”
  • New JobIf an employee responds to the layoff notice, but says they cannot come back because they have another job, the employer should make further inquiries to determine if the employee ever intends to come back or not. Is the new job temporary or permanent? If the employer allows the employee to stay on layoff for a while longer, will the employee return later?
  • Personal Circumstances

    If an employee says that they cannot return because of personal circumstances, for example they need to care for their kids or an ill dependent, the employer should make further inquiries to determine if the employee might be entitled to a leave of absence or other accommodations. In some circumstances the employee’s layoff might be converted to a leave of absence or they may be able to return to work with accommodations, for example working part-time from home. While employers are not able to require medical certificates from employees claiming entitlement to the Infectious Disease Emergencies Leave, in most circumstances the employer should ask for evidence to justify the employee’s entitlement to a leave or accommodation.

Takeaways

A variety of issues can come up in the context of a recall. Employers need to be prepared to address these and, likely, to be somewhat flexible with respect to what a return to work will look like.