Put Appropriate Policies In Place
After an employer has assessed all workplace risks thoroughly, (for guidance on this, please see Part 1), employers should draft and put workplace policies into place, and update existing policies.
At a minimum, an employer should have the following policies in place prior to recalling employees to work:
- New procedures and rules to protect employees and prevent the spread of COVID-19
- Protocols to deal with an employee that tests positive for COVID-19, or has been exposed to it, including what steps the employee will be required to take and how the employer will contract trace among other employees
- PPE protocols and training
- Refusals to work or return to work, including consequences for those who refuse without a legitimate reason
- Accommodation requests by employees who cannot return to work
All policies should be completed and circulated among employees before any return to work. Understanding of and adherence to the policies by employees is critical in reducing the risks.
The final step in reopening your workplace is the recall of employees. Employees may be on temporary layoffs, working remotely, or may have taken a COVID-19-related leave of absence. In most cases, written notice of recall should be provided, preferably with at least 5 business days' notice to allow an employee to make arrangements to return. Written notice is not a requirement under the Employment Standards Act (the “ESA”), but is typically considered best practice. A follow-up phone call is also recommended to ensure that employees have received the recall notice.
Not all employees should be recalled at once. Determine who needs to return to the workplace immediately, who is essential for operations and who can continue to work remotely in order to reduce the number of people physically occupying the workplace.
On May 29, 2020, the Government of Ontario suspended certain ESA provisions related to temporary layoffs and constructive dismissal. Retroactive to March 1, 2020, any employee temporarily laid off as a result of COVID-19 is automatically deemed to be on an Infectious Disease Emergency Leave. This takes the pressure off of employers to recall their employees within 13 weeks of their layoff date in order to avoid claims of wrongful dismissal.
Notwithstanding the above, if an employee is on temporary layoff, pay close attention to whether a recall date was specified at the time of the layoff. If such a date exists, ensure that this date is complied with; this may move the employee either up or down in terms of priority to return.
Finally, if your workplace is unionized, consider whether seniority or other rules apply to the recall of employees.
Seek Legal Advice
This article offers a starting point for planning the reopening of your workplace, however, the list of issues is not exhaustive, and other factors may need to be considered depending on the nature of your business.
If you are an employer who requires assistance with your return to work plan or you wish to evaluate your plan, please contact the SV Law Employment Team. Our team will be happy to help you develop and draft your return to work policies.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.