In this Coping with COVID-19 podcast episode, OBJ publisher Michael Curran speaks with J.D. Sharp, a partner at Emond Harnden – one of Ottawa’s leading labour and employment law firms – about what employers need to know as the economy reopens and employees start returning to work.
This is an edited transcript of the discussion. To hear the full interview, please watch the video above.
OBJ: Restrictions on businesses are slowly being rolled back. J.D., what should employers consider before recalling employees who had been temporarily laid off?
SHARP: Some concerns that businesses need to take into account is how many employees they are recalling and what level of recall they need to do. You then also have to consider the risks with recall. For example, if you only recall half your workforce, what does that mean for the other half? If it’s a phased recall, it might not be a big issue. But if you bring back 50 per cent and you don’t do anything with the other 50 per cent, we may be looking at constructive dismissal issues.
For the actual notice of recall, you’ll want to give employees a firm recall date, the work location to which they’re being recalled and any adjustments to working conditions that they need to be aware of.
OBJ: Many businesses are also going to be looking at restructuring their business model. Can an employer change the job descriptions of employees as they’re being recalled?
SHARP: Certainly you can, but there are risks depending on the degree and magnitude of the changes you do impose. Minor changes to work locations may not trigger anything, but major changes to compensation, job duties or level within the organization may trigger a constructive dismissal.
OBJ: What are some of the considerations employers should take when it comes to health and safety concerns?
SHARP: As an employer, you want to review all of the public health directions such as, for example, any face mask or physical distancing requirements, and be able to explain them to your employees when questions inevitably arise.
You may encounter employees who are worried about coming back to work and bringing something back into their home if they have young children, an elderly parent or someone who is immunocompromised in their house. You’re going to have to consider the nuances of the issues. It may mean that the employee can’t come to work right now and they may be seeking an emergency leave.
