Canadian Underwriter

Are your clients using the pandemic to terminate staff? A primer on their liability exposure

August 18, 2020   by Adam Malik

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Just because staff members are not choosing to return the office, that doesn’t mean employers can terminate them, an employment lawyer warned.

If P&C organizations or their commercial business clients are culling employees for the wrong reasons, they could be opening themselves up to legal action, added Bill Anderson, Toronto-based partner at law firm Blaney McMurtry.

Even though employers are re-opening their offices and calling staff back to work, they may realize they don’t need the same number of staff members as before for whatever reason, Anderson said during the recent Hub International Virtual Summit.

“When they’re looking at the list of people who are coming back and not coming back, there is an objective business criteria with respect to that decision,” Anderson explained during his session, Proceed with Caution: Managing Employee Relationships and Risk in the Workplace. “Because there can be a tendency for employers to look at weak employees and not have them return to the workplace.” Alija

But then the question becomes: Why are they considered weak? Is it because they’ve taken time off due to the pandemic? Employees are entitled to a number of job-protected leaves, including as a result of COVID-19 in a number of jurisdictions. In Ontario, the infectious disease emergency leave is available to those who are under medical investigation, in quarantine, providing care or support to someone as a result of an infectious disease, and others.

“Are they ‘weak’ because they’ve taken time because of the infectious disease emergency leave? Are they ‘weak’ because they were taking care of a family member? Do they have a disability and that’s perceived as a weakness for those people?” Anderson said.

Discriminating based on these factors opens up a can of legal worms, he warned.

“Any time you have job-protected leave, or a certain characteristic that would constitute a discriminatory issue acted upon in a termination, then [the] employer is going to face the consequences of that,” said Anderson “So, employers need to be careful, when they’re culling their list of employees who are not returning, that they do not discriminate against anyone on the basis of one of those [rights] enumerated within in the human right code or act [whether it’s the code or act will depend on where you are], or something in the Employment Standards Act.”

Anderson also highlighted the importance of maintaining a safe work environment. If people are coming back to the office, the employer is obligated to ensure risk is eliminated.

“And ‘workplace’ is broadly defined,” he pointed out. “So, it’s not only where you’re sitting in a tower; it’s also when you’re off at customer sites, when travelling, and when doing other things.

“You want to keep your employees healthy and safe in the workplace because it’s the right thing to do. And why else? Because you are potentially going to have work refusals: [when] people come back to work, they’re [going to be] a little bit uncomfortable.”


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