Refusing to Return to Work: Risks, Rights and ResponsibilitiesApr 28 2020
Applications for the new Canada Emergency Wage Subsidy opened on Monday, and companies are looking to bring employees back at full or reduced hours. A new issue arising in the COVID-19 era has some employees refusing to return to work. Three common reasons for this appear to be:
- Fear of contracting COVID-19;
- Added responsibilities due to COVID-19; and
- Some people are satisfied with earnings from Government Benefits.
In general, it is an implied term of every employment contract that an employee must attend work to perform his/her duties and not fail to report to work without a lawful excuse. Where an employee fails to return to work and is not on an approved leave, it may be possible to treat the employee as having abandoned his/her position. This would be considered the same as the employee resigning from his/her position.
The legal test for abandonment is whether the facts viewed objectively by a reasonable person would demonstrate that the employee no longer intends to be bound by their employment contract. To prove this, it is important that the employer provide clear written notice to the employee that he/she is required to return to work and that failure to do so will result in the employer treating the employee as having abandoned the position.
Assessing whether an employee has abandoned a position is fact-specific and each of the above-noted scenarios will involve different considerations.
Fear of Contracting covid-19
It is another implied term of every employment contract that the employer will provide a safe workplace. Employers who are following public health guidelines by increasing sanitization, physical distancing and, depending on the work environment, providing protective gear, would generally be fulfilling their obligations.
There is not yet any clear legal guidance on this issue, however absent a real threat to an employee’s safety, it is unlikely that fear of contracting the illness, on its own, will be considered a lawful excuse for refusing to return to work.
There may, however, be other considerations that would entitle an employee to refuse to return. If an employee is immunocompromised, for example, the employee may be entitled to be accommodated pursuant to s. 13 of the BC Human Rights Code. An employee cannot be discriminated against due to an illness or disability. It may be that during the state of emergency, the employee needs to either work from home or, if not available, to remain on leave until he/she can return safely to the workplace.
An employer is entitled to request a note from a medical practitioner confirming it is recommended that the employee stay home. However employers should act reasonably in making such requests and provide sufficient time for the employee to comply.
Added responsibilities due to covid-19
With schools and daycares closed, many employees may be unable to find childcare and be unable to turn to their usual go-to babysitters (grandparents). Employees may also have new obligations relating to caring for elderly parents. Section 13 of the BC Human Rights Code also protects employees from discrimination on the basis of “family status”.
If an employee is unable to return to work due to responsibilities to family members arising from COVID-19, it is likely that he/she will be entitled to be accommodated. An employer must consider options for accommodation to the point of “undue hardship”. Again, if may be that the employee can only return to work remotely and, if this is not available, that he/she needs to remain on leave for the time being. It also may be that the employee can only return part-time or requires flexible shifts. All reasonable options should be considered.
Satisfied with Earnings from Government Benefits
Several benefits have been announced by both the provincial and federal governments to support workers who have experienced an interruption in earnings due to COVID-19. The Canada Emergency Response Benefit (CERB) provides $2,000 per month for up to four months to eligible workers. BC announced applications will be accepted beginning May 1st for an additional $1,000 benefit for British Columbian workers who meet the eligibility requirements of the CERB. Some employees may earn more from government benefits than they would from working.
While all CERB applications are automatically being approved right now, this does not mean that every person qualifies for it. It also must be reapplied for each month.
If/when application eligibility is reviewed, anyone who is found to be ineligible will be required to pay it back. This includes people who are actively choosing not to work. An employee who voluntarily quits his/her job is not eligible for CERB. This may also extend to an employee who has been recalled, even if not for full-time hours, and refuses to return.
Absent considerations that may require accommodation, if an employee is actively choosing not to return to work after receiving clear written warning in favour of receiving government benefits it is likely that he/she would be found to have abandoned his/her employment. In this case, an employer may issue a Record of Employment indicating that the employee has quit.
More about CERB eligibility requirements can be found on the government website here.
If you are unsure if you need to return to work or have questions about your entitlements following a lay-off, we can help.
If you have employees who are refusing to return to work and want to discuss your options, we can help.