With the Ford government allowing some retail stores to re-open, many Ontario employees are being recalled back to work. Here are frequently asked questions about employee recalls.
Does an Employer have to give a timeline of when an employee will be recalled?
No. Employers are not required to provide a definitive or estimated duration of how long a layoff will last. Even if an employer does provide an estimate, they may not be bound by it. However, if a layoff lasts longer than the prescribed limits in the Employment Standards Act, the layoff becomes a termination of employment.
Does an Employer have to provide notice of recall?
No, there are no notice requirements for an employer to give an employee when they are being recalled from a layoff.
Can an employee refuse a recall?
Yes and no.
Yes, if the employee is taking a job protected leave guaranteed under the ESA such as for COVID-19 related reasons or sick leave. They may also refuse if they require certain accommodations under the Ontario Human Rights Code.
No, if the employee does not have a legitimate reason such as the above. Even when on a layoff, an employee must obey all lawful orders by their employer. If they refuse a recall without a legitimate reason, the employee could be deemed to have abandoned or resigned from employment. It may also be considered insubordination for failure to return to work.
Can an employee refuse a recall based on health and safety concerns (e.g. catching coronavirus)?
Yes, but they must have a reasonable belief that the employer is not providing a safe working environment.
Under the Ontario Occupational Health and Safety Act, an employee has the right to refuse unsafe work if they have reason to believe they may face dangerous working conditions. So, for an employee who is concerned about the health and safety measures an employer has adopted during the pandemic, an employee could refuse to work.
However, the Occupational Health and Safety Act lays out the specific procedure in how an employer and employee are to deal with unsafe work refusals. Importantly, an employee must remain as close as possible to the work site while an employer investigates.
Therefore, an employee should not simply refuse a recall without first inspecting and seeing their workplace first. A failure to do so may mean that the employee does not have reasonable belief to support their unsafe work complaint. They may also breach their obligation to stay as close to the work site as possible during an investigation.
Jason Wong of Wong Employment Law is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about employee recalls from layoffs, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.