After many weeks of business closures due to the COVID-19 pandemic, many provinces are slowly lifting restrictions and granting businesses permission to operate. As a result, many Canadian employers are beginning to consider recalling employees that have been temporarily laid off. This article identifies key issues and considerations in answering common questions about recalling employees back to work at this time.

RECALL

What does “recall” mean?

Recall is the process of bringing employees back to work after they have been temporarily laid off. The process is usually dictated by employment standards, company policy (if any) and, in unionized environments, the collective agreement.

When should an employer recall employees?

This will vary, as every employer will need to make an individual assessment of its own business needs. In fact, many businesses will need to recall employees in phases rather than all at once. Generally speaking, it will be time to recall employees when:

• There is work for employees to do;
• The work can be done safely; and
• The work can be done in compliance with public health orders and recommendations and government declarations.

Will there come a point when an employer must make a decision about recall or can layoff continue indefinitely?

Employment standards in most Canadian jurisdictions limit the length of time that an employee can be laid off, after which the layoff will be deemed a termination and the employee will be entitled to termination entitlements (with some exceptions). The time limit on temporary layoff varies by jurisdiction. In some cases, layoff can be extended – either for a set period or indefinitely – by making payments to the employee or by agreement. It is important for an employer to pay attention to its jurisdiction’s temporary layoff requirements and when a layoff is deemed to be an indefinite termination. The collective agreement, if there is one, may set similar limits.

What are some other issues to consider when assessing whether to recall employees?

Set out below are a few highlights of some employment-related considerations which should be considered by any company engaged in recalling employees:

• Is the business permitted to operate? If the employer is uncertain of provincial or municipal restrictions on its business operations, seek guidance before moving to resume normal business activity.  
• If the employer has a landlord, are there any landlord-tenant policies which may be applicable, including rules associated with building re-entry, occupation, cleaning, or safety?
• Does the employer have the supplies necessary to carry out work, including any required personal protective equipment (“PPE”)?
• Has the employer addressed how to accommodate necessary visitors and suppliers at the workplace?
• Has the employer consulted with any available guidelines (in particular, health and safety guidelines) which have been released that are relevant to the employer’s business?

Are there rules for recalling employees, such as how much notice is required, which employees get recalled first, etc.?

Very likely, yes. These rules would mainly come from applicable employment standards and/or the collective agreement (if there is one). Additional rules may also be contained in a workplace layoff policy or potentially even individual employment agreements, though the latter is less common.

Do the longest-serving employees need to be recalled first?

It depends. Collective agreements commonly contain recall rights/priority, which is often determined, at least in part, by seniority. Otherwise, absent particular requirements from a collective agreement, employment standards, or company policy, the employer is generally free to recall employees in its preferred order so long as it does not do so discriminatorily. For example, an employer might recall by ability or some other reasonable criteria. However, deciding not to recall certain employees because of their place of origin, for example, would risk violating human rights laws that prohibit discrimination on that basis. 

Guidance should be sought where recall decisions are potentially being impacted by the fact that one or more employees is on modified work or some other form of accommodation to ensure that an employee does not experience adverse treatment (eg. lower recall priority) on the basis of a protected ground of discrimination.

At the early stage of the recall process, an employer should determine its business’ essential roles and individuals that need to be included in the recall, to the extent that the employer is free to choose which employees to bring back.

How are employees recalled back to work?

Employees are usually recalled by receiving a written recall notice from their employer. Requirements around the contents of the recall notice and how it can be served on the employee will vary. However, the recall notice will need to include, at a minimum, the effective date of the recall (when the employee must return to work) and the location at which the employee must report for work on the effective date.

How much notice of recall must an employer give to laid off employees?

The length of notice an employer must give is usually specified by the collective agreement, if there is one, and applicable employment standards. In non-unionized environments, an employer may also be bound by company policy or employment agreement requirements. However, the employer will need to provide, at a minimum, the notice required by applicable employment standards legislation. Where there is no minimum recall period specified by law, policy or agreement, the employer will need to provide reasonable notice of recall. What constitutes reasonable notice will depend on the circumstances, including what may have been communicated to the employee at the time of layoff.

What if an employee is recalled and does not return to work? Can the employer terminate employment?

This will depend on the reason given by the employee, as well as any recall rights established by a collective agreement, individual employment contract, or policy.

Employers should expect that some employees may have difficulty returning due to illness or childcare responsibilities arising from school and childcare closures. Many of these employees may qualify for statutory leaves of absence, meaning their jobs will be protected from termination. Even if employees do not qualify for statutory leave under applicable employment standards, there may be human rights risks associated with termination or discipline on the grounds of disability or family status, depending on the reasons cited by the employee as to why they are unable to return. Employers should consider examining their sick leave policies to ensure they align with new statutory requirements and public health guidance.

Where these issues are not present – for example, if the employee simply does not want to return to work without any reasonable basis or they are simply “afraid due to COVID-19 risk” – employers should proceed with caution before rushing to termination. Generally speaking, employers should consider following up with employees that they served with recall notice to ensure it was received and to confirm the employee’s ability to return.

For those employees not able to return on the recall date, this will provide the opportunity to discuss the reason(s), as well as the measures in place to protect the workforce, as necessary. If an employee does not have a reasonable basis for failing to return, the employer will have the opportunity to ask for confirmation that the employee is giving any right of recall, resigning or, alternatively, abandoning their employment (depending on the circumstances).

It is recommended that employers consult with legal counsel about potential terminations. This is especially the case where the employee raises concerns about safety (see below) or where the employee was temporarily laid off.  Where an employer did not expressly reserve the right to layoff – such as through a term of the written employment contract or collective agreement – the employer should be aware of the risk of the employee claiming that they were constructively dismissed as of the layoff date.

What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?

As discussed in a recent publication, FAQ’s: COVID-19 and the Workplace, Canadian employers have a positive OHS-related obligation to take reasonable care in all of the circumstances to protect the health and safety of employees.

Where an employee has a reasonable belief respecting defined hazardous conditions in the workplace that potentially affect safety (this set of conditions varies widely by jurisdiction), the employee may be able to refuse to attend work or perform certain duties. Whether or not a work refusal is reasonable will depend on individual circumstances. Further, some employees are subject to restricted rights to refuse work, such as where the duties could present a danger to their health and safety but the hazard is an inherent or normal condition of their work, or where a refusal to work would endanger the lives and safety of others at the workplace.

In the event of a work refusal, the employer must respond by taking steps to investigate and remedy the circumstances to eliminate or reduce the hazard in accordance with OHS legislation. No reprisal for properly exercising a health and safety right may occur.

Can an employer refuse to let employees return to the workplace where they have conditions that are high-risk in relation to COVID-19, or have been ill with the virus?

If there is a reasonable basis for concern that the employee cannot work safely, the employer is generally entitled to insist that the employee provide confirmation in the form of objective medical evidence that the employee is fit to return to the workplace. This is usually provided in the form of written confirmation from the employee’s treating physician. During the pandemic, it has become acceptable for employers to follow public health guidance on when (in relation to reported symptoms or passage of time) it is safe to return an employee previously ill with the virus to work without a note.

However, if a worker with a particular health condition claims they cannot return due to medical or safety risk, this may trigger an obligation for the employee to provide more specific medical information relating to why they cannot return to work. In this case, employers may wish to seek detailed information on any changes to the worksite, such as enhanced safety measures for the particular employee, further protective PPE, such as a respirator, and further distancing measures that may permit the employee to return. OHS legislation requires measures in the particular circumstances, and this could include the employee’s particular medical condition.

Can an employer require a returning employee to work remotely?

As we have commented previously, in the current climate, a request that employees work remotely will likely be seen as a reasonable measure to encourage social distancing, given the advice of and restrictions legislated by federal and provincial government authorities.

How do employers monitor employees working remotely?

For fulsome commentary on issues related to managing remote work, see our recent publication Working from Home: Key Considerations for Managing a Remote Workforce.

NEW FINANCIAL RELIEF FOR EMPLOYERS AND EMPLOYEES

Will the Canada Emergency Wage Subsidy (CEWS) help employers recall employees?

Probably, since it will help some businesses get going again. Canadian employers whose businesses were affected by COVID-19 may be eligible for a subsidy of 75% of employee wages for up to 12 weeks, retroactive from March 15, 2020, to June 6, 2020 (the end date may be subject to change).

Eligible employers include those of all sizes and across all sectors of the economy, excluding public sector entities. Eligible employers that suffer a drop in gross revenues of at least 15% in March, and 30% in April or May, when compared to the same month in 2019, will be able to access the subsidy. Alternatively, an employer may be eligible where they are able to show a drop in revenue compared to that earned in January and February 2020.

The purposes of the CEWS as communicated by the federal government are to enable employers to re-hire workers previously laid off as a result of COVID-19, help prevent further job losses, and better position businesses to resume normal operations following the crisis.

More information on the CEWS can be found here.

Will employees be able to collect CERB when they return to work?

It will depend on their employment income. The federal government recently announced that individuals can remain eligible for the Canada Emergency Response Benefit while working as long as they receive no more than $1,000 per month in employment income.

More information on the CERB can be found here.

SAFELY RETURNING TO WORK

How can an employer safely return employees to work during this pandemic?

There are as many answers to this question as there are workplaces, but there are common considerations that can be used as starting points. Across Canada, an employer’s OHS legal obligation to take all reasonable precautions to protect workers in the circumstances can include a duty to establish measures and procedures for the prevention and control of infections in the current environment that will continue to pose risk as businesses slowly reopen.

Employers, in consultation with the Joint Health and Safety Committee (JHSC) in the workplace (where a JHSC is required or exists), are required to develop appropriate measures and procedures and provide workers with the relevant training. An employer should have a written return to work plan setting out safety precautions and employee expectations. This will assist in establishing and communicating new workplace etiquette and protocols.

Most provincial governments, safety associations, and safe workplace associations, as well as the Canadian Centre for Occupational Health and Safety, have now posted complimentary, detailed guidance on recommended safety-related measures, often with specific guidance and suggestions by sector. For example, there has been guidance and suggestions related to office settings, construction, daycare, manufacturing, health care, transportation, remote work camps, and myriad other types of businesses.

How can an employer incorporate proper social distancing at the workplace?

How and where employees are physically positioned in the workplace will be crucial as workers return to work. Most, if not all, employers will need to develop floor/workplace plans to meet applicable social distancing guidelines (generally two metres). It will be especially important to address high-traffic areas and common areas, such as elevators, locker areas, worksite areas involving vehicles, and break rooms. Exits and entrances may also need to be considered in this respect.

In the event of an emergency, employers should consider how to evacuate and/or muster employees in compliance with social distancing requirements. Meetings should be scheduled in a large space, outside, or remotely by telephone or online means.

How else can employers address workplace hazards associated with COVID-19?

The starting point for addressing workplace hazards is conducting hazard assessments for all tasks performed in the workplace to identify existing and potential hazards. Where elimination of these hazards is not possible or reasonable in the circumstances, the hazards must be controlled according to the hierarchy or controls. This hierarchy and some example controls are set out below.

• First option – engineering controls, which control the hazard at the source:
  • physical barriers between workers and others, which will vary by industry sector, where possible.

• Second option – administrative controls, which involve changes to the ways people interact:
  • how work is scheduled – for example, staggering shift times, breaks and lunches, and restricting the number of people on-site and where they are assigned to work;
  • ongoing disinfecting work areas and equipment;
  • ongoing sanitization of shared equipment, if the sharing of tools and equipment cannot be avoided;
  • personal hygiene measures – for example, access to soap and water or alcohol-based hand sanitizer and disinfecting wipes;
  • sanitizing commonly touched surfaces;
  • monitoring compliance with newly implemented requirements and dealing with non-compliance;
  • policies encouraging ill employees to remain home and requiring participation in screening questions before entry to the workplace each day. With proper advice and guidance, these controls could even potentially include temperature screening or another test for the virus daily before entry; and
  • tracking and monitoring the workforce, since if an employee tests positive for COVID-19, the local public health unit may ask the employer to provide information on where the employee worked, as well as the contact information of any other employee who may have been exposed.

• Third option – PPE, which controls the hazard at the worker and is necessary when hazards cannot be completely eliminated by administrative and engineering controls:
  • gloves, masks, eye protection, sanitizer or other PPE appropriate to the hazard, which could include elevated PPE, such as respirators for workers required to work closely together or with certain higher risk clients/ patients.

All controls implemented to prevent the spread of COVID-19 should be effected in compliance with OHS requirements which may be set out in Regulations. They should be the subject of training (discussed further below) and potentially further policy and procedural guidance. They must at all times comply with pertinent public health directives, since reopening businesses are generally specifically subject to compliance with such directives.

As a last resort, some employers may be faced with business closure or the suspension of specific tasks where the risk of transmission cannot be mitigated.

What kind of training and other communication should employers provide for recalled employees?

One of the inescapable lessons of this pandemic is we all play a part in reducing transmission. This is directly applicable to the workplace, where conscientious efforts by employees will be crucial in preventing an outbreak at site. The following are some general considerations of how employers can help employees do their part in this regard:   

• training on proper basic etiquette for hygiene and preventing transmission – for example, coughing or sneezing into a bent elbow, promptly disposing of used tissues in the trash, ongoing hand cleaning, etc.;
• posting signage on hygiene in English and the majority workplace language;
• communicating how employees can report and voice concerns to the employer without fear of reprisal;
• informing workers how to report illnesses; and
• communicating in training, briefings, and ongoing reminders what is required by new and updated policies and practices for safety while reopening the business.

What should the employer do if an employee has tested positive for COVID-19 or if an employee is showing symptoms of COVID-19 and are in contact with someone else who has the virus? What about an unconfirmed case? Can an employer take an employee’s temperature?

These and other related questions are addressed in our FAQ’s: COVID-19 and the Workplace.

While hoping for the best, how can an employer plan for the worst?

When recalling employees back to work and reopening the business again, it is also the time to consider potentially less favourable scenarios. Consider implementing contingency plans and critical response mechanisms in the event that an apparent workplace infection occurs/reoccurs and forces additional layoffs. An employer must ensure a safe working environment. Depending on the situation, it may at some point be necessary to close a business location for occupational health and safety reasons.

If you have any questions about this topic, require assistance with recalling employees or drafting a return to work policy, or any other questions relating to workplace law or COVID-19, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources. For specific OHS guidance, please do not hesitate to contact a lawyer or consultant in our OHS and Workers’ Compensation Group.