Employee refusal to return to work after being recalled from temporary lay off

[Richard]

Can my employee refuse to return to work after being recalled from a temporary lay off?

[Shraddha]

Hi Richard,

Voluntarily if an employee chooses not to return to their job would likely be considered a resignation of the employee’s employment, and would eliminate the employee’s right to severance. If the employee fails to return to work within a reasonable time after being recalled then it may also result in a for-cause termination.

There are, however, instances when refusing to return to work may be justifiable:

• The employee is not being provided with proper PPE (personal protective
  equipment) required to safely perform the job or the employer is
  otherwise not complying with the Occupational Health and Safety
  Act by taking required or recommended precautions to limit
  transmission of the COVID virus;
• The employee has a sincere reason to believe that a machine (or other
  pieces of equipment) or any other device or thing that they are going to
  operate or use to carry out work is likely to endanger them or a
  co-worker;
• The employee has reason to believe that the employer is not permitted to
  be open or operate at the time of the employee recall; or
• The terms and conditions which will apply to the employees recall are
  radically different, in terms of their duties and responsibilities or level
  of pay; then the answer may be different.

In any of these situations, the refusal of an employee may be justifiable, but it is important to note that these types of situations and the employee’s rights are highly dependent on the circumstances surrounding the refusal.

I suggest this is a complex issue and you should seek legal advice.