Health and safety

Right to Refuse: Do Employees Have to Go Back?

May 12, 2020

You might be excited to get back to work, but are your employees? Some may be saying, “Yes!” but others, “Not so much.” Many of us spent the last couple of months distant from everyone outside our household, so it’s natural that employees have concerns about suddenly returning to their normal routine after spending all this time distant from co-workers, customers, and the public in general.

So what do you do if an employee refuses to return? Or what if an employee is pushing to continue to work from home? We received many questions like these after our most recent COVID-19 webinar. We’ll take a look at some of the most popular questions, but you can also download the full webinar at the bottom of this article to get valuable advice from one of our HR experts.

What if employees refuse to return?

If an employee refuses to return, your response should depend on why they refuse. Employees still have the right to refuse unsafe work, so if they invoke that right and disclose a specific health and safety concern, you need to take it seriously and respond as you would to any other work refusal, following the process laid out in the appropriate legislation for your jurisdiction.

On the other hand, an employee might refuse to return because they have continuing personal obligations. It’s possible that businesses will re-open before schools and daycare facilities do, meaning employees will still need to arrange care for children. These responsibilities may entitle your employees to a job-protected leave; several jurisdictions have implemented or expanded emergency leaves for these circumstances. Employees who are ineligible for such leaves might still have grounds for accommodation under human rights legislation. Each employee’s situation is likely unique and may change quickly, so employers need to be adaptable.

What if we laid off our employees during the shutdown and some choose not to return?

It’s possible that some employees you laid off found employment elsewhere, and that they prefer their new job. It’s also possible that some employees might not have other employment but refuse to return anyway. In either case, the employee has abandoned their job, but you should get this in writing. Have the employee provide a letter (or an e-mail) stating that they are resigning from their employment with you, along with the effective date.

If the employee won’t or just doesn’t confirm their resignation, send them a letter explaining that if they don’t return to work by a specified date, or reach out to explain why they can’t return to work, you will consider them to have abandoned their job. It’s important to give the employee chances to explain their refusal to reduce legal liability for a possible wrongful dismissal claim. The employee might want to return but be unable to; work with them to develop options or an alternative return date.

What if employees want to WFH longer or permanently?

At the very least, don’t presume it’s impossible. The massive impromptu experiment with remote work brought on by the pandemic has demonstrated that many jobs employers thought couldn’t be done remotely in fact can. Examine the job and the employee’s performance over the last few weeks of remote work. If you have concerns, bring them up with the employee and work together to develop solutions. It might be possible for the employee to work from home permanently without affecting the rest of the organization. You might need to arrange certain ‘in the office’ days to facilitate meetings, collaboration, or particular tasks unsuited to remote work.

On the other hand, if remote work isn’t possible or realistic long-term, you should explain why to the employee. Employers can generally set the conditions and locations of work unilaterally, though they may have to provide appropriate notice if the change is significant enough. Despite weeks of remote work—however successful—employees don’t have a right to work from home unless it was already in their employment contract.

 

Ensuring the health and safety of your employees can be challenging, but it’s a critical part of any organization. Planning and communicating how you’ll protect employees and continuing to follow government guidelines like social distancing can help employees who return to work feel more comfortable.

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