Employers and HR professionals are facing a whole new set of challenges they've likely never faced before because of the COVID-19 pandemic. Many Canadian businesses have had to lay off employees, some businesses for the first time since they've been open. It's understandable that these decisions are not made lightly, and the questions that come along with these decisions can make the situation even more stressful.
With decisions getting more and more difficult, we're here to help ease your concerns with answers to some of the more challenging questions you may have.
I have an employee scheduled to start working, but I have issued temporary layoffs and have no work to provide them. What should I do?
There are two options available to you. First, you may choose to rescind the offer of employment. If you choose this option, review whether this individual was gainfully employed before you hired them. If they were gainfully employed and you lured them away from their previous employer, and then rescind the offer of employment, your company can be held liable for any pay in lieu of notice of termination or severance the employee was entitled to as a result of service for their former employer.
Your other option is to attempt to retain your new hire, but modify how you onboard them. There are several different ways this could work:
- Determine whether you can provide remote orientation and training at this time;
- Discuss the situation and determine whether deferring the hire date would be mutually acceptable; or
- Place the new hire on a temporary layoff.
If you decide to place the individual on a temporary layoff, there would not be a Record of Employment (ROE) to issue, since the individual had not received any wages from your organization. In this situation, encourage the employee to connect with Service Canada and discuss the situation to see whether the ROE issued by their former company could be used to support them in collecting employment insurance.
I have an employee returning from job-protected leave. However, I am issuing temporary layoffs, and I do not have work to provide them. What can I do?
In normal circumstances, temporarily laying off an employee returning from job-protected leave could be problematic; however, if the business has laid off all or a significant number of staff, then it is much more difficult for an employee to argue that the temporary layoff was discriminatory or retaliatory.
One option is to provide the employee a letter notifying them of the temporary layoff. You would need to provide an amended Record of Employment and change the code to Code A: Shortage of Work.
Another option would be to bring the employee back for a period of time to receive training or re-orientation before issuing the temporary layoff.
Before making the decision, connect with the employee to discuss what is happening with their personal situation and the work environment.
In some cases, the employee may not be able to return to work because of childcare, self-isolation, or other circumstances. In this situation, the employee may qualify for the Emergency Care Benefit that was announced on March 18, 2020.
I have work available for my staff, but some employees are refusing to come in. What are my choices?
First you need to explore the reason for the refusal to work. Speak to your staff and determine the causes.
If the refusal is based on an employee’s need for self-isolation, providing care to a family member who is sick, or necessary due to school or daycare closures, you should try to work with the employee to find a mutually agreeable solution. If the solution you arrive at is that the employee will take an extended period away from work, you must issue a Record of Employment (ROE) using one of the following codes:
- Code D for Sickness
- Code N for Leave of Absence
- Code K for Other
If selecting Code N or Code K, we recommend adding information in the comments section to provide clarity.
Depending on the business circumstances, such as if the business is considering temporary layoffs, you could decide to place the employee on Code A: Shortage of Work. This would enable the employee to apply for regular employment insurance benefits.
If the refusal is not based on the above circumstances, then you are likely dealing with a general right to refuse unsafe work. In most jurisdictions, employees have the right to refuse unsafe work if they are not working within specific industries or professions that may be exempt. Refer to the occupational health and safety legislation in your jurisdiction for a list of exempt industries and professions.
Before proceeding, you need to verify that the right to refuse work applies to this employee. If the right to refuse work does not apply to the employee, you need to discuss their obligations with them.
If the right to refuse applies to the employee, given the current circumstances, it may be challenging for a business to determine that the employee is abandoning their position or even to say with certainty that the individual is not at risk. To address this, we recommend asking questions to determine the root of the concern. If possible, offer reasonable solutions to reduce the concerns and work with the individual. However, if the employee continues to refuse work, we recommend issuing an ROE to the employee placing them on either:
- Code N for Leave of Absence; or
- Code K for Other.
Within the comments section, include additional information, such as: “The employee is refusing to work in order to socially distance or self-isolate.”
It is unclear at this time whether employees in these circumstances would qualify for employment insurance or the emergency care benefits. This decision will be made by Service Canada when reviewing applications.
Before issuing the ROE, we recommend connecting with the employee to outline the options available and the reasonable steps made by your organization.
Advise the employee that you currently have work available and outline the measures that have been implemented to help mitigate the risk of exposure to COVID-19. However, notify the employee that if they would like to remain at home, the business would issue them a ROE and place them on a Leave of Absence or Other with comments to explain the reason.
Looking for more information?
HRdownloads is here to support your business as questions arise and circumstances continue to change. Layoffs, Employement Insurance (EI) claims, benefits, and entitlement are all topics employers are starting to think deeply about, but that's raised a number of questions. Get answers in our recent blog post: Questions about COVID-19 are not getting any easier, but we have answers.
As the pandemic continues to progress, we will continue to update our blog as frequently as possible to provide you the resources and answers you need.
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