Health and safety

COVID-ucation Questions Series: Refusing to Return and Infectious Disease Emergency Leave

October 09, 2020

We received many questions during our recent webinar, “COVID-ucation: Employers, Parents, School, and the Pandemic”. In a difficult time like this, we wanted to make sure the answers to these challenging questions were available, so we’ve created another multi-part question series on our blog to help ensure employers and HR professionals have access to the information they need.

What if an employee working from home refuses to return to work when asked?

First establish why they’re refusing. Their reason might affect what you need to do. If the employee’s reason for refusing qualifies them for a job-protected leave or an accommodation, then you need to follow those processes. Likewise, if they’re invoking their right to refuse unsafe or dangerous work, you need to take that refusal seriously and investigate the merits.

If, however, the employee has no legitimate reason to refuse to return to work, or fails to communicate why they’re refusing, then there may be a job abandonment claim. If you suspect job abandonment, seek legal counsel, as the specific circumstances may affect how you handle it. In general, though, you should attempt to contact the employee to inform them that failure to return to work by a specified date without providing a sufficient reason would be job abandonment, and therefore deemed a resignation (or termination for cause if a collective agreement applies). Again, whenever you’re dealing with dismissals, termination, or end of employment in general, seek advice or legal counsel first to address liability risks.

Can you talk about Ontario’s infectious disease emergency leave a little more? What makes someone eligible or not? How long are they job-protected?

Eligibility is defined in subsection 50.1 (1.1) of the Employment Standards Act, 2000 (ESA), and further provisions are outlined in the Infectious Disease Emergency Leave regulation. Broadly, employees qualify either because they or someone they must care for is sick with the virus or quarantining or self-isolating or because their employer has reduced or eliminated their hours in response to the pandemic. Recently, the leave was expanded to include parents who keep their children out of school because of the pandemic, even if schools are open. Using the leave this way, employees are eligible until the infectious disease is no longer present or they no longer meet any of the eligibility qualifications. Consult the ESA for more details.

Additionally, on May 29, 2020, The Ontario government enacted O. Reg 228/20 to protect employers from expensive termination obligations when maximum layoffs durations were met, and to keep employees from losing their jobs if the reduction in hours or wages was directly caused by the pandemic. The regulation provides that employees are not considered laid off, but on the infectious disease emergency leave. This provision lasts until the ‘COVID-19 period’ ends. As of this writing, that has been set as January 2, 2021, but the government might amend the regulation and extend the period again.

Do employees still accumulate vacation time while on the infectious disease emergency leave?

They do. As long as an employee is continuously employed, they continue to earn vacation time. Like all job-protected leaves, the infectious disease emergency leave counts as continuous employment. However, since the infectious disease emergency leave is an unpaid leave, employees do not accrue vacation pay for the period of the unpaid leave (unless they are subject to an employment contract or a collective agreement that states otherwise).

 

In addition to questions from our webinar, we’ve also received many questions regarding the potential effects the school year could have on the workplace. With school just starting and uncertainty ahead, we’ve created a COVID-19 School Disruption Checklist to help employers develop best practices for possible workplace disruptions arising from COVID-19 in schools. Download for FREE today.

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