Hello from the other side? 5 key risks in recalling workers post-Covid

Hello from the other side? 5 key risks in recalling workers post-Covid

Over the last few days, questions about returning people to work have been steadily coming in to our team, as clients plan for reopening or rebuilding from a skeleton crew.  This is an exciting time, but as businesses continue to pivot and rethink their operations, there are also new risks and complications.  In this blog, we tackle five of the top risks we see for BC businesses as they call non-union workers to talk about returning to work.

1. Workplace Health and Safety

This is the first and most critical piece of any plan for bringing workers back.  You must ensure that you understand and have implemented appropriate safety protocols including physical distancing and personal protective equipment.  WorkSafeBC and the BC Centre for Disease Control have practical information on their websites.  It is also critical to communicate to workers who are returning the steps taken to ensure they will be safe.

2. Protected Covid Leaves

The new protected leaves added to the BC Employment Standards Act remain in effect. There are several types of leaves but one that will come up frequently is a mandatory leave for workers who need to provide care for their child due to school or daycare closure.  At the time of writing this blog, there is no timeline for reopening of BC schools.  Any workers who have school-aged children or are otherwise eligible for protected leave cannot be required to return to work.  As described below under Human Rights, businesses should still include workers with children in return to work planning, and ensure they are offered a return.

3. Human Rights

There can be a well-intentioned inclination to assume certain groups of workers may not want to return to work.  For example, workers who are pregnant, are older, or have school-aged children.  Approaching older workers about early retirement or asking pregnant employees to start maternity leave early can make workers feel singled out and side-lined.  If an employer considers any human rights protected characteristic in deciding who to recall or even who to call to discuss/offer a return, that could be discrimination under the Human Rights Code.  Businesses can consider what skills are needed and what positions will add value, but they should not be considering any personal characteristics such as gender, age, disability or family/marital status.  That said, if a worker raises a human rights issue as impacting their ability to return to work, the employer must consider how they can accommodate their restrictions or limitations.  This may seem contradictory but it is important to leave workers in the driver’s seat when it comes to human rights, and not make any decisions about them based on assumptions or stereotypes.

4. Constructive Dismissal

Many businesses are preparing for a “new normal” which may include dramatically different operations and staffing requirements.  Businesses may need fewer workers in retail sales and more delivery drivers, for example. Fundamental and unilateral changes to a worker’s role may be a constructive dismissal and entitle the worker to consider themselves to be permanently terminated and entitled to severance pay.  The simplest solution to this is to ensure any significant changes are discussed with workers and agreed to in writing.  If they do not agree, this is a tricky situation, and time to get some legal advice.

5. Severance

In deciding which workers are needed to reopen or rebuild, we are also seeing businesses starting to make decisions about workers who will not be returning.  If you are changing a temporary layoff to a permanent one, termination pay (aka severance pay) will be due.  In very general terms, how much termination pay is owed will be influenced by how long they have worked for you (length of service), employment contract terms about termination, and the worker’s age, the nature of their job and availability of alternative employment.  In considering who will return and who will not, potential severance liability is a key consideration.

For businesses who are continuing some or all of their workers on temporary layoffs, keep in mind that under the Employment Standards Act temporary layoffs due to Covid-19 have a maximum length of 16 consecutive weeks (extended from 13 to 16 weeks, effective May 4, 2020) in a 20-week cycle period.  If workers are being returned at less than 50% of their normal weekly wages, this time is still considered a “week of layoff,” so counts towards that 16 weeks.  Once a temporary layoff goes longer than 16 weeks, it can convert to a permanent layoff, with severance pay owed.

This is an exciting time for businesses and workers alike ,but should be approached with careful consideration.  Even a single legal claim by a worker can derail a business in this critical time of rebuilding, and are these claims are often avoidable.