CHAUDHRI: Protecting yourself when employers behave badly

Welcome to week 8 of the COVID-19 crisis.

By and large, employers are bending over backwards, doing what they can to keep their employees earning a pay cheque. But, as is always the case in a crisis, there are those who take advantage, so some employers are behaving badly.

Any savvy employee impacted by COVID-19 should look out for the following red flags:

THE RECALL NOTICE

In gearing up for the reopening of their businesses employers have started to recall employees. Some, however, are taking this as an opportunity to redefine the workplace relationship.

In fact, I have seen recall notices asking employees to agree to:

— The right to layoff the employee again at some later date;

— Changing work locations;

— Changing working hours upwards or downwards depending on the needs of the business.

Not only that, employees are being asked to “sign back” their recall notices confirming they agree to these new, potentially onerous terms.

If your employer has asked you to sign and/or agree to new terms in order to accept your recall, that is a red flag. Recalls should be reasonable and not an opportunity for your employer to renegotiate your employment agreement.

NO COMMUNICATION

Many employees have not heard from their employers since being laid off as early as mid-March. This is despite the fact that new government programs, including the Canada Emergency Wage Subsidy Program (CEWS), have been available to employers for almost two weeks.

Many employees are in the dark wondering when and if they might be recalled under these new government programs. Others who need access to their workspace to gather personal belongings have not received responses.

During this time of uncertainty employers should do biweekly check-ins, provide support to employees and paint a vision for the future.

INADEQUATE SAFETY MEASURES

There are new safety measures all employers are strongly recommended to implement to ensure workplaces are safe. Many employers have failed to communicate their new safety measures while others have yet to consider improving safety at all.

Ensure workplaces are sanitized, communicate social distancing measures, supplement uniforms with safety equipment (masks, visors and gloves) as well as make handwashing stations available to all employees who may need them. Safety trumps everything.

Those employers that do not know how to recall employees effectively or how to communicate new safety protocols should seek advice. Prepare a plan now to return your employees to work safely while businesses are still closed. Set the foundation for a safe return.

As always, we continue to take your workplace questions relating to COVID-19. Let’s get to it:

My daughter started working for a company 4.8 years ago that was since bought out by a huge multinational corporation. Last week, she was let go in a “group termination” with 200 others citing restructuring and COVID-19. She was given eight weeks on her termination. Is this enough even though she was terminated during COVID-19? And does she qualify for CERB?

Assuming your daughter is young (i.e. below 40), eight weeks is low. And depending on her salary she may be entitled to more (three to five months). Given the timing and reason of the termination, she is likely eligible for the CERB. If she is audited by the government, she may have to provide her termination letter to establish that her termination was COVID-19 related. To be sure, she can ask her employer to provide her with a note confirming her termination was COVID-19 related so that she can apply to CERB with a clear head.

My employer has deemed itself an essential business because we print boxes for food. It went ahead and cut our wages by 20% and laid off some staff. This week it has cut our earnings by another eight hours bringing us down to 24 hours. When we ask why the company does not tap into any of the government programs, they say the company does not qualify. I have worked there for 18 years. What can I do here?

I suggest you write to your employer that you do not agree to the wage reduction or the reduction in your hours and ask to be returned to full-time work immediately. If your employer refuses, I suggest you hire a lawyer to write on your behalf to either get you recalled or claim constructive dismissal. With respect to the CEWS program, employers have not been mandated by the government to apply for this benefit. I know of many that have not applied at all.

My family member is a dental hygienist with a medical condition that leaves him immunocompromised. Individuals with his condition are more vulnerable to COVID-19 infection. His employer is not aware of the medical condition, however, dental hygienists are among the top vulnerable professions to contract COVID-19. While my family member was laid off six weeks ago, he has since learned he may be recalled to work within the next week. Does he have any right to stay away from his place of work?

When recalled I suggest your family member inform his employer that he may be immunocompromised. In this case it may be helpful to get a doctor’s note (even though employer’s currently cannot insist on it) confirming the increased vulnerability and any special accommodations he may require to return (i.e. enhanced social distancing measures, PPE, more frequent breaks to handwash). The employer may then not insist on an immediate recall until these new measure are put in place. There is no need to disclose the actual diagnosis to the employer. At some point your family member must consider when he will feel safe enough to return. Without a medically backed letter, an employer may insist he return to work if the workplace has implemented new safety measures that meet provincial guidelines.

At Levitt LLP we still offer a quick free phone call to help you navigate your COVID-19 related questions.

Email me at schaudhri@levittllp.com as the Toronto Sun continues to take on your employment questions each week. Till then, stay safe.