NBC Journalist: “What do you say to Americans who are watching you right now, who are scared?”
Donald J. Trump: “I say you’re a terrible reporter, that’s what I say.”
It seems to me that (from the perspective of an employment lawyer at least) we’re now entering phase 3 of the coronavirus/COVID crisis. Phase 1 was marked by the question, “Can I tell an employee to stay home after travelling abroad?” In phase 2 the question became, “Can I temporarily lay off some or all of my staff?”
The phase 3 question is,
“What if our employees refuse to come to work?”
Employee Safety v. The Need To Sustain Operations
This, in my view, is going to be the most problematic and extended phase of the ongoing crisis. We’ve reached the point at which many businesses have shut down, entirely. For how long, nobody seems to know (or even to be willing to estimate). Many other businesses and organizations, however, simply cannot close their doors.
Hospitals, municipal essential services, grocery stores, public utilities, gas stations, other social support services, etc. all need at least some staff to continue to come to work in order to keep operations functioning at (at least) a minimal level. Some are even trying to hire new staff.
And the problem they are facing isn’t (anymore) how to convince people to stay home. It’s how to convince them to come to work. People are, naturally, worried and scared and feeling vulnerable, and more and more are deciding to stay home to ride this out.
Refusing To Work = Quitting… Normally
In normal times, of course, an employer would be justified in taking the view that an employee who refuses to attend work has abandoned his/her employment. The relationship would cease, an R.O.E. (bearing the code for “Quit”) would be issued, and that would be it. No pay in lieu of notice (severance) would be required (except in the rare instance of a constructive dismissal).
But these are not “normal” times. (There’s the understatement of the day.) Not only may employees have a good reason to not want to attend at work right now, they may be statutorily justified in refusing to attend. The corollary of an employer’s obligation to provide a safe and healthy workplace is an employee’s entitlement to refuse to perform unsafe work.
If an employee has a reasonable basis for believing that attending work will place him/her at risk, then asserting the view that this amounts to a “quit” could be viewed by WorkSafeBC as retaliation. It would be viewed by a court or the Employment Standards Branch as a wrongful dismissal.
What about situations in which there is presently no noticeably increased risk to employees? If an employee simply “doesn’t feel good about going to work right now”, how should employers react? Should they invoke their legal entitlement to treat the employee as having resigned?
My advice to employers is, as much as possible don’t resort to that measure just now. People are scared, they are being bombarded with bad news via traditional and social media sources, they are feeling exceedingly vulnerable, they are in uncharted territory, and having their employer threaten to cut them loose if they don’t come to work certainly isn’t going to help.
Practically speaking, if they won’t come to work, there is nothing the employer can do about that state of things. You cannot go to their homes and roust them out to come to the office. If they won’t come to work, they won’t come to work and there’s nothing to be done about that.
And, there’s really no mad rush to determine their employment status right now, anyway. If they aren’t at work then they are not earning wages and so their ongoing cost to the employer for a few weeks is negligible (yes, I know, ongoing benefits and insurance coverage are expensive, but a few weeks one way or the other is going to make little difference to most businesses).
So, rather than pushing these people out the door with an R.O.E. reading “Quit”, my advice is to just leave them where they are for now. Revisit the situation in a few weeks, see where things are at. You may find you’ll desperately need those same people when this crisis eases, and you may be glad you didn’t leap at the opportunity to cut ties with them.
Completing The R.O.E. Form
If an employee won’t come to work and there is a legitimate safety reason for that refusal, I suggest employers complete the R.O.E. form using the code for “Shortage of Work”. Don’t insert any comments (see more below on this topic), just use that code.
If an employee won’t come to work and you don’t believe there’s any legitimate safety reason for that, what do you put on the R.O.E. form? (Remember, you have an obligation to complete the form honestly.) That’s a little trickier of a situation, isn’t it?
My advice is this… in that (hopefully rare) situation, use the code for “Other” and insert a comment along the lines of “Employee-initiated leave of absence”. That leaves the matter of E.I. benefits eligibility between Service Canada and the employee. You’ve done your part, you’ve told the truth of the matter, and they can work it out between themselves.
Another Important Note About the R.O.E. Form
I’ve heard, in the last few days, that Service Canada is recommending employers not add comments to R.O.E. forms right now. Comments cause the E.I. application to be flagged for additional review and that slows down the application (and the system as a whole).
So, generally speaking (but, see above), skip the comments. Just insert the code for “Shortage of Work” and you’ll be doing your employees (and the deluged Service Canada staff) a favour. As Sergeant Joe Friday used to say, “Just the facts, ma’am.”
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.