COVID-19 Related Layoffs and Return to Work

With the vaccine rollout underway, an end to the current public health state of emergency feels within reach. For a business owner or employer who has laid off employees due to the COVID-19 pandemic, you may have questions about your obligations to employees once the state of emergency is declared over. Below are some of the frequently asked questions:

When must I contact employees who have been laid off?

If you laid off employees due to the public health state of emergency, you have two weeks after the date when the state of emergency is declared over, to schedule those employees back to work. Otherwise, the employee is considered to have been terminated. In which case, the employee is entitled to pay in lieu of notice which is calculated from the original date that the employee was laid off. This means that employees are not accruing additional entitlement to pay in lieu of notice while laid off.

What if I do not want an employee to return to work?

If you do not wish to have an employee return to work, you may be in a position to terminate the employee; however, there are a number of important factors to consider, including the terms of the employee’s contract of employment, which can impact both the right of an employer to terminate an employee and the employee’s severance entitlement.  It is also important to remember that the decision to terminate cannot be based on any prohibited ground of discrimination under applicable human rights legislation.

How has COVID-19 impacted the requirements for group termination?

If an employer seeks to terminate a group of more than 10 employees, all within a period of four weeks, the employer is required to give written notice to the Minister of Labour Relations and Workplace Safety, to each employee and to the union, if applicable. There are a number of exceptions to this requirement and additional factors to consider before proceeding with a group termination. During the public health state of emergency, employers are exempt from providing the required notice to employees and to the union, but the employer is still obligated to provide the required notice to the Minister of Labour Relations and Workplace Safety.

What if an employee refuses or fails to return to work?

If you schedule an employee to return to work within two weeks of the public health state of emergency ending, but that employee refuses or otherwise does not to return to work, the employee may be considered to have resigned. However, this is highly dependent on the circumstances and the reason for the employee’s refusal or failure to return to work. COVID-19 has created a unique situation that is unchartered territory under employment and human rights legislation. Employers must be aware that they always have a duty to accommodate employees in certain circumstances and an employee may have legitimate reasons for refusing to return to the workplace. Terminating or considering such an employee to have resigned may be considered discriminatory action. Each employee’s circumstances must be assessed on a case-by-case basis to determine if there is an obligation on the employer to accommodate alternative work arrangements for such employee.

If you have any questions or would like additional information with respect to your particular situation, please contact one of our Employment Law Lawyers.

This article is for informational purposes only and is not constitute legal advice and does not create a solicitor-client relationship. W Law LLP does not make any guarantee about the accuracy or completeness of the information contained herein.

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