Work Refusals – What Can Tourism Employers Do if Employees Refuse to Come Back?

Employers may face challenges in circumstances where an employee has spent an extended period of time away from work for any reason, and is refusing or neglecting to return.

How an employer responds will depend greatly on the reason for the refusal. Is the employee refusing because they don’t feel safe at work? Are they dealing with a health challenge or  personal situation? Or is it simply because they don’t want to return?

No matter what the reason, open communication with employees will be critical. Make time to discuss and clarify concerns, take action to address them and if required, provide options and/or accommodations. Individual situations may vary and require a case-by-case assessment and response.

Here are a few guidelines and resources to help employers understand how to address these situations:

Reason for Not Returning: Employee Claims They Don’t Feel Safe at Work

Workers in BC have the right to refuse work if they believe it presents an undue hazard. An undue hazard is an “unwarranted, inappropriate, excessive, or disproportionate” risk, above and beyond the potential exposure a general member of the public would face through regular, day-to-day activity.

A refusal of unsafe work would require the employer and the employee/worker to follow specific steps within their workplace to investigate and resolve the issue.

Reason for Not Returning: Health Issues or Personal Challenges

These kinds of situations will require a clear understanding of the employee’s situation and consideration of a number of factors (e.g. medical information, employment standards and human rights legislation, workers’ compensation legislation if applicable, risk assessment, accommodation needs, common law, etc.) in order to determine how best to respond.

In addition, employees may qualify for one of the following leaves, as provided for within BC’s Employment standards legislation:

COVID-19 leave

This unpaid, job-protected leave is available to employees who are unable to work for reasons related to COVID-19, including:

• They are assisting a dependent being vaccinated against COVID-19
• They have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse
• They are in quarantine or self-isolation and are acting in accordance with an order of the provincial health officer

• Their employer has directed them not to work due to concern about their exposure to others
• They need to provide care to their minor child or a dependent adult who is their child or former foster child for a reason related to COVID-19, including a school, daycare or similar facility closure
• They are outside of BC and unable to return to work due to travel or border restrictions
• They are more susceptible to COVID-19 in the opinion of a medical professional because of an underlying health condition, ongoing treatment, or other illness and are receiving Canada recovery sickness benefits for the leave

Retroactive to January 27, 2020, employees can take this leave for the reasons above as long as they need it, without putting their job at risk. Once it is no longer needed, this leave will be removed from the Employment Standards Act.

NEW Personal Illness or Injury Leave

This leave provides up to three days of unpaid, and five days of paid, job-protected leave each year for eligible employees covered by the Employment Standards Act who can’t work due to personal illness or injury.

Reason for Not Returning: They just don’t want to 

BC’s Employment Standards legislation guides that employees cannot simply refuse to return to work when being recalled from a layoff. If the employee has been absent from work for reasons related to disability or work-related injury, they may have an obligation to cooperate with the employer by, for example, responding to reasonable requests for medical information.

In some circumstances, employers could deem an employee to have resigned and would not owe the employee any severance. However, terminations of employment in such circumstances (including whether or not to consider an employee to have resigned)  may require additional considerations including: legislated leaves, human rights and workers compensation legislation, and common law, prior to terminating. Employers are encouraged to consult legal counsel prior to terminating.

Summary

Quite simply, there is not one simple response that will address every concern. Employees who have been away from work for a period of time are now being asked to return to a workplace that looks the same, but in fact may be very different.  Add this new reality to the challenges that employees may also be facing outside of the workplace and situations can quickly become complex.

Information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

For direct one-on-one support, please feel free to contact us: info@go2hr.ca