If you missed both of our webinars last week (access all broadcasts here), we focussed on what comes next: as we enter Phase 1 of the re-opening in Ontario many employers will be looking to recall workers who were temporarily laid off as a result of mandatory business closures. The following is an outline of the basic rules and laws governing the recall of employees from layoff.

The Employment Standards, Act (2000) (Ontario) (ESA) permits employers to temporarily lay off employees for specified periods of time without triggering a termination of employment for ESA purposes. The ESA also permits employers to recall workers to employment on notice during the temporary layoff period.

The ESA does not prescribe the amount of notice or the form of recall notice required. However, it is highly recommended that notice of recall be issued in writing and that it be specific about the date, time and location where the employee is expected to report back for duty.

Subject to certain legally protected exceptions, employees who refuse or fail to return to work within a reasonable period of time after having been requested by their employer to do so will be deemed to have resigned and will not be entitled to Termination Pay under the ESA.

Under the present circumstances, such legally protected exceptions will include:

  1. Age (The Chief Medical Officer of Health has advised that all people over 70 should self-isolate given the elevated risk for "severe outcomes" from COVID-19)
  2. Other High Risk Individuals (Self or member of household with compromised immune system, hypertension, etc.)
  3. Those with Child care/Dependent care obligations
  4. Individuals under investigation or treatment for COVID-19 or who have been in close contact with someone under investigation or treatment and have been directed to self-isolate.

When an employee is unable or unwilling to accept a requested recall for one of the above reasons the employee's status with their employer will change from Layoff to Leave of Absence and their job should be protected until they are able to return. Employers may require employees to provide documentation to establish their entitlement to a protected leave of absence, but not necessarily medical certification.

Another issue that may arise will be with employees who do not have a legal basis to refuse a recall but who nonetheless are uncomfortable returning to work or who have a family member who is pressuring them not to do so. Although employers may have the legal right to insist that such employees return or forfeit their employment, employers must consider the morale and productivity issues likely to be associated with forcing an employee's hand to return. Ultimately, employers are going to be faced with some tough judgment calls as these issues arise.

Originally published 2020.05.20

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.