May 29, 2020
by Paul Martin, Wilton Martin Litigation Lawyers; Frank Portman, Wilton Martin Litigation Lawyers
As provincial economies begin to re-open in the wake of COVID-19, dental employers are preparing for the re-opening of clinics. However, the re-start of operations brings with it an abundance of employment law issues that must be carefully addressed in order to avoid employer liability. To help employers, we have summarized many of the most frequently asked questions related to re-opening.
It is important to note that, with respect to these issues, the devil is very much in the details. While the issues commonly faced by employers may be similar, the intricacies of each particular employer-employee relationship means that caution must be taken in implementing any change. Legal counsel should always be consulted prior to unilaterally modifying an employee’s working conditions.
When I bring back staff from a temporary lay-off, do I need to recall all my staff or prioritize the recall of any staff?
There is no requirement that all staff be recalled at once, or that they be recalled in any particular order. An employer may use any valid business criteria for selecting which employees are to be recalled, in whatever order the employer sees fit.
The exception is that an employer may not rely on any enumerated ground under provincial human rights legislation to determine which staff will be recalled. For instance, the decision cannot be based on the employee’s age, which is a protected ground.
What happens if I do not recall an employee immediately?
Provincial employment standards legislation imposes limits on the duration of temporary lay-offs. If an employee’s temporary lay-off exceeds this maximum, then the lay-off may automatically turn into a dismissal, with the employer becoming liable for any entitlements arising from that dismissal.
For example, in Ontario, the Employment Standards Act permits a temporary lay-off to last no longer than 13-weeks in a 20-week period. If a lay-off extends past that point, then the employment relationship is terminated automatically by law. This will require the employer to provide termination pay to the employee, as well as any other benefits provided by their contract or statute. This may also require the employer to pay out larger amounts to employees, if the employee seeks damages for wrongful dismissal.
However, provincial legislation also permits longer lay-offs if certain conditions are met. In Ontario, a temporary lay-off can be extended up to a maximum of 35-weeks in a 52-week period, under certain circumstances. One of the circumstances allowing for such an extension is where an employee agrees to the extension.
Consequently, if an employee cannot be recalled in the short-term, employers should consider seeking an employee’s consent to continue the lay-off or take other measures available to them under provincial legislation to extend the maximum duration of a temporary lay-off. Employees may be willing to accept such an extension, given that the alternative may result in them becoming unemployed during a period of significant economic downturn.
I would like to recall some of my employees, but I don’t have enough work to keep them fully employed. Can I recall them on reduced hours and pay them accordingly?
Many employment relationships provide employers with flexibility as to the number of hours for which they can schedule an employee. In the case of hourly employees, these relationships usually provide for reasonable variations in employee hours, although individual relationships may vary.
However, complications can emerge when an employee’s hours are more significantly reduced.
First, in normal circumstances, a significant drop in working hours (and as a corollary, compensation), can constitute a constructive dismissal if it constitutes a fundamental change to the employment relationship. This risk is likely to be attenuated in the current circumstances, particularly where the alternative may be a full lay-off, and where the reduction in hours is due to a temporary phenomenon. Nonetheless, opportunistic employees may try to seize on such a reduction to claim that there has been a constructive dismissal and seek termination entitlements.
Second, employment legislation may impose certain consequences on an employment relationship if an employee works significantly less after recall. For example, in Ontario the Employment Standards Act provides that any week in which an employee earns less than 50% of their usual weekly earnings counts as a week in which the employee was laid off for the purposes of assessing the duration of the lay-off. Consequently, employers who significantly reduce employees’ weekly earnings over a significant period without employee consent run the risk of being found to have dismissed those employees.
Can I reduce a salaried employee’s pay to reflect reduced hours?
The compensation of an hourly employee is easily calculated during a period where their hours are reduced. That determination becomes much more complex where an employee receives an annual (or otherwise static) salary.
The question of whether a salaried employee’s pay may be temporarily reduced to reflect a reduction in working hours will ultimately be determined by that employee’s employment relationship, and whether the terms of that relationship suggest that the employee’s pay can be reduced in such circumstances. This will depend on several factors unique to each employee’s contract.
If the employment relationship does not permit such a reduction, the unilateral reduction in pay could give rise to a claim of breach of contract or constructive dismissal. Consequently, it is strongly recommended that any employer who intends to temporarily reduce a salaried employee’s pay seek legal advice prior to doing so.
An employee can always agree to a temporary reduction in pay. For some salaried employees, such a reduction may be a viable option if the employer would otherwise be required to continue a lay-off (and thereby would not pay them at all). Of course, accessibility of the Canada Emergency Relief Benefit may also impact whether employees will agree to a temporary reduction in pay.
How much notice of recall do I need to give my employees?
Some jurisdictions have specific notice requirements for recalling employees from lay-off. For example, Alberta requires 7 days’ notice to recall an employee from a temporary lay-off.
However, other jurisdictions, like Ontario, do not require a set amount of notice. In those jurisdictions, an employer’s obligation is to provide reasonable notice of recall, with the determination of what is “reasonable” made on a case-by-case basis. If the employee does not return to work within a reasonable time after receiving notice of recall, their employment may be terminated without liability for the employer.
In practical terms, employers should be reasonably flexible in scheduling their employees’ return to work. Many employees have made lifestyle adjustments for needs such as childcare. These adjustments may mean these employees require additional time to arrange their affairs prior to a return to work. An employer who is inflexible with employees’ legitimate needs to organize themselves for a return to work risks claims of constructive dismissal and possibly violations of human rights protections for family status.
However, employees must ultimately return to the workplace if recalled, even if they may be slightly delayed in doing so. They do not have the option of staying on an unpaid leave or a lay-off, even if they would prefer to do so. The employer is entitled to recall them to work. If they fail to respond to that recall within a reasonable time, then they may have forfeited their job and any entitlements on termination.
Can I access the Canada Emergency Wage Subsidy for workers on reduced hours?
Yes. The CEWS allows employers to recall employees and receive reimbursement for these wages, even if that remuneration is less than the employee’s usual pre-COVID earnings. Although the government has stated its hope that employees under the CEWS will see their pre-COVID earnings restored fully during the program, there is no requirement that employers do so, particularly if they are working reduced hours.
What type of protective measuresmust I implement in the workplace?
Workplace health and safety legislation does not stipulate specific measures that must be taken to reduce the risk of COVID-19 infection in re-opened workplaces. However, as with any other possible risk to workplace health and safety, employers must take all reasonable precautions to prevent the risk to their workers from COVID-19.
Many of these measures have been well-publicized and are straightforward and include ensuring social distancing within the workplace and regular handwashing. Provincial health and safety regulators have published resources on measures and policies that employers can implement to reduce the risk of transmission. While, ultimately, employers are responsible for determining the measures and approaches that will best protect these workers, these publications provide a strong foundation for such a program.
Along with these legal requirements, dental employers must ensure that they continue to remain apprised and compliant with their provincial dentistry regulator’s requirements. In Ontario, the RCDSO has published specific mandatory infection control protocols for treating emergency and urgent care patients. This written set of standards should be strictly followed, or dentists run the risk of employees complaining to the Ministry of Labour, or the RCDSO. By following the recommendations made by occupational health and safety regulators and dental regulators, dental employers minimize the risk that they could be found to have insufficiently protected their workforce.
What if an employee refuses to return to work citing the risk of transmission?
In general, a refusal to work because of safety concerns is dealt with under workplace health and safety legislation, which provides workers with the right to refuse unsafe work.
In most instances, a work refusal may only be exercised in respect of a risk specific to the workplace. Because the risk of COVID-19 transmission is not localized to a particular workplace, a refusal to return to work based only on the general social risk of transmission will not meet this criterion. Instead, a worker must point to a specific feature of the workplace which is alleged to have been unsafe, such as not adequately controlling the risk of COVID-19 transmission, in order to institute a valid work refusal.
If the employee does so and refuses to work as a consequence, it triggers a process set out in workplace health and safety legislation requiring employer review of the complaint, which can ultimately conclude with a regulatory inspector attending the workplace and reviewing the legitimacy of the complaint. An employer cannot avoid this as a possible outcome. However, if an employer has reasonably and in good faith implemented measures to control the risk of transmission, it is likely that they will not be negatively impacted by such an inspection.
If an employee invokes the right to refuse work in a bad faith attempt to avoid returning to work, this can be cause for discipline, including termination of the employment relationship. However, employers must be extremely cautious about instituting such discipline. A good faith but mistaken belief in the right to refuse unsafe work in a particular situation is protected, and an employer who acts on it may expose themselves to considerable liability. Legal counsel must be sought before making such a determination.
As dental clinics across the country move closer to opening, it is important for dentists to ensure that employment matters are handled properly. Given the strain COVID-19 has caused on the dental industry, the last thing any dentist needs is a costly and aggravating legal dispute with an employee.
About the Author
Paul Martin (left) is a founding partner of Wilton Martin Litigation Lawyers. Paul provides civil litigation representation and advice in a broad range of matters to dentists, with a particular emphasis on employment/labour, commercial litigation, professional discipline and health law. Paul is frequently sought after to speak to industry groups on employment law and human rights matters.
Frank Portman (right) is a veteran commercial litigation lawyer with Wilton Martin Litigation Lawyers in Toronto with a particular focus in business and workplace issues and disputes, including human rights, harassment, discipline and other employment matters.