Now that Toronto and most of Ontario has entered stage 3 of the province’s reopening plan, many employees are being recalled back to work.
We have already covered that most employees must return to the workplace if recalled, employee options while laid off, legal pay cuts, refusing work, and others, but these are no longer frequently asked questions as many employees are gradually returning to the workplace.
With many employees back at work, some have been left behind. Many employees have been asking - why am I not getting called back to work but others are? What are my rights? What can I do?
I’m not being called back to work but others are, what are my rights?
An employee’s options when they see many of their coworkers return to work will depend on the reason for not being recalled. In most cases, an employer will say that there is simply not enough work for some employees due to COVID-19. This is a legitimate reason recognized by law in the Employment Standards Act. Employees who have been laid off or have had their hours reduced due to COVID-19 are on a job-protected Infectious Disease Emergency Leave.
However, Ontario passed Bill 195 on July 24, 2020, declaring Ontario’s state of emergency over. This means that employees who are laid off or on the Infectious Disease Emergency Leave will revert to a regular layoff starting on September 4, 2020. This could have significant effects on an employee’s right to claim a severance package under constructive dismissal. Many employees may have the right to claim a severance package or severance pay when they are laid off, especially if they do not have an employment contract that allows an employer to lay them off.
If an employee’s contract allows for layoffs and the employee continues to be laid off after September 4, 2020, the regular Employment Standards Act timelines kick in. This includes the fact that layoffs lasting longer than 13 weeks (or 35 weeks if benefits or payments are continued) will be deemed a termination of employment. After 13 (or 35 weeks), employees will be entitled to severance.
What can I do about not being recalled to work?
Depending on their contracts, laid off employees may assert “constructive dismissal” and ask their employers for a severance package. Successfully asserting constructive dismissal in COVID-19 is somewhat unpredictable, especially if the employee has already been laid off due to COVID-19 earlier in the year.
However, asserting constructive dismissal now may help an employee’s case in the future.
Employers must not discriminate when choosing who to bring back.
While employers will have flexibility in deciding who to bring back based on their operational needs, employers must not discriminate based on grounds listed in the Human Rights Code. This includes family and marital status, sex, gender, disability, and religion. An example of discrimination may occur when an employer refuses to bring back an employee because they unreasonably think that a person’s medical condition will affect their work.
Employee and Employer Tip: Stay in Touch
In uncertain times like these, communication is key. Employees on layoff are still considered employed. Keeping employees informed about their job status and work will help employers facilitate returns to work. For dissatisfied employees, it is important to know your rights and communicate them to your employer.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about returning back to work during COVID-19, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.