Can Employers Force their Employees to Return to Work During COVID-19?

Can Employers Force their Employees to Return to Work During COVID-19?

In Ontario, an employer can force an employee to return to work during the pandemic (COVID-19) if the employer has followed the necessary safety precautions recommended by Public Health Ontario. If an employee fails to return to work after his or her employer has taken these safety precautions, the employee is deemed to have abandoned his or her job which is the same thing as a resignation. While an employer can force an employee to return to work in Ontario, an employee’s real power is to exercise their right to refuse unsafe work. An employee is not required to “work now and complain later” but can cease work and leave the unsafe area immediately without being punished in such a circumstance. However, employees are cautioned to ensure that they have justification to refuse work otherwise their job may be at risk if it is later decided that the workplace was safe.

Tips for Employers

Where there is job abandonment, it is important that employers immediately write to the employee accepting his or her resignation and fill out a Record of Employment (“ROE”) stating that the employee has resigned. In this situation, the employer will not owe the employee who has abandoned his or her job any notice or severance. However, the employer will still owe the employee his or her last paycheck, unpaid expenses and accrued but unpaid pay (such as vacation pay).

Tips for Employees

It is important that employees first ensure that their employer has not followed all the necessary safety precautions as recommended by Public Health Ontario before refusing work as this will create a justification for the employee’s failure to return to work and the employees’ job will be protected until it becomes safe to return to work. In addition, if an employee is found to have abandoned his job, it is likely that the Government of Canada will later determine that the said employee is or was not entitled to the Canada Emergency Response Benefit (CERB). 

Before choosing to refuse work, an employee must have a reasonable apprehension of danger to justify their reason to refuse to return to work and note that mere speculation of the risk of COVID-19 is not considered a justification. If you decide to refuse work, it is recommended that you first report your safety concern(s) to your employer or supervisor. If your safety concern(s) is not resolved or there is a dispute as to whether there is indeed a safety concern, the employee or the employer should inform the Ministry of Labour of the work refusal. An investigator for the Ministry of Labour will then investigate the workplace and make a finding. If the Ministry of Labour finds the workplace to be safe, the employee will be forced to return to work. On the other hand, where the Minister of Labour finds that the workplace is unsafe, the employee is entitled/permitted to refuse to return to work.

Tips for Employers and Employees

It is important to note that employers cannot force employees to return to the workplace if the workplace is found to be unsafe as discussed above, if the worker has parenting obligations related to COVID-19 or if the worker is sick or quarantined or taking care of someone who is sick or quarantined as per Infectious Disease Emergency Leave.

Call Mackenzie Law today for a free consultation if you have questions or require help navigating work refusals.

Disclaimer: The contents of this blog is intended to provide a general guide on the subject matter and is not a substitute for legal advice. A lawyer should be consulted for your specific circumstances.

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