For months now, we have been trying to spread this message: although a lot of things have changed over the last few months, one thing that has not is that attending at work is not optional (see here, for example).
In pre-COVID days, employees did not have the option of simply choosing not to attend at work on a given day, and that is no different now when they are being directed to return to the workplace after a period of layoff/leave or working from home. They can’t simply decide that they “prefer” to defer their return.
So what should employers do when an employee indicates their reluctance or refusal to come back to work?
Like many situations, communication is key. The first thing to do is to engage in a conversation with the employee and find out why they do not want to come back at this time. While working is not optional, there are some scenarios in which individuals may have the right to refuse to attend at the workplace. These relate primarily to situations where they have a medical condition that makes them particularly susceptible to the virus or have childcare obligations .
Accommodation: Disability and Childcare Obligations
If an employee has a legitimate need for accommodation or is truly unable to work due to the pandemic, two different exemptions may apply. Most jurisdictions, including Ontario, have provided for job-protected leaves of absence if an employee cannot work due to the virus. It is important to note that this means that they cannot work, as opposed to simply choosing not to.
At the same time, existing human rights legislation already provides for accommodation in many circumstances, such as If an employee has a legitimate need for accommodation or is truly unable to work due to the pandemic. For example, if an individual has a medical condition that makes them particularly vulnerable to the virus and their doctor has said that they should not attend at work, then they may be entitled to accommodation.
Similarly, the protection of family status means that there is a duty to accommodate childcare obligations. As we often discuss with our clients, this does not mean that you must accommodate a choice or preference; if there are other options available to the employee, then they do not have a need for accommodation.
Employees do not have the right to choose the form of accommodation that they receive. Employers can explore other methods of accommodation, including work from home, modified hours (for example, if they can arrange childcare at certain times of day), or even by providing childcare options, as some employers have done. Accommodation does not automatically mean a leave of absence.
This issue certainly bears watching as the school year starts. So much is unknown right now, as students prepare to head back to school. Some parents have chosen to have them attend remotely, and even those that will be “back in school” are, in many cases, still going to be working remotely for a significant portion of the time. Furthermore, outbreaks may mean that students end up at home unexpectedly. For all these reasons, accommodation of childcare obligations will be front and centre.
Safety in the Workplace
This is where communication is critical. We have helped many clients provide detailed information to their employees explaining the efforts that are being made to keep them safe in the workplace. This can often be done in conjunction with the direction to return, and can include details of the safety protocols that are being implemented along with the workers’ obligations with respect to safety. It should also include information on what to do if the worker feels unsafe in the workplace at any time, including a clear process to report concerns. Workers cannot refuse to work because of a generalized fear or concern; there must be a genuine danger in the workplace to trigger the right to refuse unsafe work.
If there is no lawful exemption
These are scary times and it is understandable that people will be wary of attending at work. However, they have to understand that a general fear of going out in public, travelling to work or even being at work will not be sufficient to allow them to simply decline to attend at work at this time while keeping their job.
Once you have explained to an employee all of the processes and policies that are in place to keep the workplace safe, and confirmed that there is no need for accommodation or a statutory leave of absence, then you can advise them that they are required to attend at work as directed. You should also very clearly advise them that a failure to do so will result in the conclusion that they are resigning from their employment.
It may also be worth noting that if they are counting on receiving government assistance such as the Canada Emergency Response Benefit, they may not be eligible since that is supposed to be for people who cannot work, as opposed to those who choose not to work.
Attending at work is not optional, even if an employee has been on a leave, or layoff, or has been working from home. They cannot insist that they will not return “yet”, or that they will only work from home.
It is important to ensure that the employee does not fall within any of the exemptions above, as well as to assure them of the efforts being made to keep the workplace safe. Once you do so, then you can insist that the employee return to work, though we do encourage employers to allow people to work from home if they can do so effectively, as that is the safest approach at this time.
We also encourage employers to be flexible when it comes to things like childcare, particularly as the school year commences. These are not normal times, and some flexibility will be necessary. However, that does not mean that employees can refuse to work or insist that they will only do so remotely.