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The Question

My team had a large number of staff that were temporarily laid off because of COVID-19. We all do the same job. One co-worker was asked to return to work before me, even though I have been working at the company three years longer. I haven’t been asked to return yet. I am 48 years old, so more than a decade older than the co-worker who was asked to return. I also live farther away from the job location, requiring me to take public transit, and the co-worker asked to return lives closer and can walk. If I have higher seniority, should I have been brought back first? Can they bring back younger or other workers first if they are at a lower risk? We are not unionized.

The First Answer

Lior Samfiru, employment lawyer, Samfiru Tumarkin LLP, Toronto

It is important to remember that, in most cases, a temporary layoff may be illegal in that it gives the employee the right to treat the layoff as a constructive dismissal. An employee who is laid off would have the right to either treat it as a termination, or accept it and await being recalled back to work.

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Where the employee chooses to accept the layoff, seniority does not have to be considered when recalling employees back to work. Non-unionized employers do not have to account for seniority or even experience when recalling employees. It is the exclusive right of the employer to determine the needs of the business as well as which employees best meet these needs. This means that a more junior employee may be recalled before a more senior one. It also means that an employer may choose whose employment it wishes to terminate.

The exception is that an employer cannot base its recall or termination decisions on discriminatory factors. An employer is not allowed to consider things such as age, race, ethnicity or place of origin. Such improper considerations would result in violations of human rights legislation.

In addition, when recalling employees, a company may also not consider whether an employee suffers from a disability. While the employer may think that it is trying to protect its employees, it is not up to the employer to determine whether an employee is too vulnerable to work. It is up to the employee and the employee’s doctor to seek accommodation, if needed, and an employer that is too pro-active may find itself on the wrong side of a discrimination claim.

The Second Answer

Pamela Connolly, lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.

Outside of unionized workplaces, longer service does not create formal seniority rights. However, sometimes employers do recognize seniority in workplace policies, such as scheduling vacation time. I imagine that your workplace does not have a formal policy in place for recalling workers based on seniority after temporary layoffs. Absent specific rules or practices, employers have discretion regarding who to recall, and when, provided they meet statutory requirements and do not base their decisions on unlawful reasons, such as discrimination.

When deciding which employees should be recalled to work, employers may consider a variety of factors, such as skills, performance, reporting relationships and even wages, since recalling lower-earning employees first may help keep payroll costs down. As businesses reopen, they will also need to consider workplace safety and how best to comply with recommendations regarding reducing the risk of exposure to COVID-19. It is possible that an employer may view a worker who does not use public transit as more desirable since they are able to avoid that associated exposure during their commute. If employers base any aspect of their decision on a protected ground, such as your age, this would be discriminatory; however as older individuals as well as individuals with underlying health conditions are at higher risk, the employer may be able to justify this decision.

If you are keen to return to work, I suggest that you contact your employer to make your feelings known. You can also discuss ways to mitigate the risks of your use of public transit. Some employers are experiencing resistance from employees who are asked to return to work. This may be due to health concerns, family responsibilities and even the desirability of not working and receiving government support, which may replace or even exceed the employee’s regular wages. You may find that speaking with your employer will help you understand their recall decisions and assist in returning you to work sooner, if that is your desire.

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