Yes, generally, an employer in Ontario can force an employee to come back to work during Covid-19.
As many businesses reopen as Ontario enters stage 3, many are wondering, can an employer make an employee come back to the workplace after all this time away?
If the employer has followed all the necessary safety precautions as recommended by Public Health Ontario, then an employer can make an employee come back into the workplace. An employee’s failure to return to work in these circumstances is job abandonment, which is the same thing as a resignation. Accordingly, the employer should fill out a Record of Employment (“ROE”) stating the employee has resigned and write to the employee accepting his or her resignation.
In case the employee has abandoned his or her job, the employer will not owe any notice or severance to the employee. All an employer in these circumstances will owe is the employee’s last paycheck, unpaid expenses and accrued but unpaid pay (like vacation pay). Also, it is likely that the Government of Canada will later determine that the employee is/was not entitled to the CERB after the job abandonment, if applicable.
Read: Sector-Specific Guidance from Public Health Officials in Ontario about Reopening Workplaces
However, if an employer has NOT followed all the necessary safety precautions as recommended by Public Health Ontario, then the employee’s failure to return to work is justified, and his or her job is protected until it is safe to return to work.
If a worker is nervous or afraid to return to work because of Covid, the first thing they should do is have a discussion to learn what their employer will do make them safe at work. Flat out refusing to return to work because of fear of the virus without first opening a legitimate dialogue with the employer may result in a finding of job abandonment.
It is important to note that employees cannot argue simple speculation of a Covid risk as a reason to refuse to come back to work. There must be a reasonable apprehension of danger.
If there is a dispute about whether the workplace is unsafe, then the worker should follow these steps:
COVID-19 Work Refusal: First Stage
- Worker reports refusal to his/her supervisor or employer.
- Worker stays in a safe place (i.e.home).
- Employer or supervisor investigates the employee’s concern.
- Safety Issue resolved. The worker goes back to work.
- Safety Issue not resolved: Worker is permitted by the employer to refuse work.
- Safety Issue not resolved, and parties do not agree. Proceed to the second stage.
COVID-19 Work Refusal: Second Stage
- Worker or employer or someone representing worker or employer calls the Ministry of Labour.
- Worker stays in a safe place (i.e. home).
- Ministry of Labour Inspector investigates the workplace.
- Ministry of Labour makes a finding.
If the Ministry of Labour finds that the workplace is safe, then the employer can force the worker to return to work. However, if the Ministry of Labour finds that the workplace is unsafe, then the employee is entitled to refuse to come back to work.
If the worker refuses to call the Ministry of Labour, then the employer may call the Ministry of Labour to determine it is safe to work.
Also, employers cannot force employees to return to the workplace in other circumstances, including (1) if the worker has parenting obligations related to Covid or (2) if the worker is sick or quarantined or taking care of someone who is sick or quarantined as per Infectious Disease Emergency Leave.
Call us if you have further questions about work refusals. We offer free consultations to employers and employees.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.