DANIEL LUBLIN, SPECIAL TO THE GLOBE AND MAIL

Daniel Lublin, a Partner and Employment Lawyer at Whitten & Lublin Employment and Labour Lawyers, talks to The Globe and Mail to answer some of the employment questions revolving around COVID-19 & employment rights.

I was laid off yet I am still being asked to perform work-related duties, with no compensation offered. Is this legal?

COVID-19 & employment rights have not created a general reorganization of workplace rights and employees cannot be forced to work for free! Some employees agree to perform some very limited duties during a layoff. Mostly, this is to assist others to find information or to answer several questions. However, this is their personal choice. If your employer needs you to work, it should recall you and pay you for your time or otherwise offer to compensate you one way or another for the work that you perform.

Moreover, it would be a wrongful dismissal if you were terminated for declining to work without pay during a layoff and you cannot be disciplined for refusing or ignoring work requests that you are not compensated to perform.

I am receiving benefits through long-term disability insurance, although this is ending shortly. My employer advises that due to a slowdown in business, it cannot provide me with my position back at this time. Since I will be available to work must my employer compensate me?

Even if there is a legitimate slowdown of work, this does not liberate the company from its normal employment law obligations. Once you are capable of returning to work and performing your job following a medical leave of absence, then your employer has a duty to reinstate you. If the company delays, avoids or is otherwise unwilling to allow you to resume your employment, then it amounts to wrongful termination. In addition, you could claim damages for discrimination if there is evidence that your employer’s decision was, in any way, motivated by your illness or disability.

What happens if all or most of the other employees were laid off? You obviously cannot expect to return to a job that does not presently exist. However, even in this situation you generally cannot be forced to accept a layoff without pay and you could treat it as termination and still claim severance.

The answer is different for those companies subject to a provincial or federal cease work order. They cannot be successfully sued by employees who are unable to work during the period of mandatory shutdown. However, once that mandatory shutdown ends, if the employees are not recalled or allowed to work, it too becomes a wrongful dismissal.

If you’ve got more employment questions about salary during Coronavirus, please contact us. With years of experience in this ever-changing area of law, we at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you’re looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

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