The Question
In June 2020, I was laid off from my company in Toronto. I’m a dual citizen, so a few months ago I moved to Michigan to save money. But I’m not sure I should let my company know. Could I be terminated for leaving the country, or could my employer somehow use my new living situation as a reason to not recall me back to work?
The First Answer
Alison Longmore, Partner, Jewitt McLuckie & Associates, Ottawa, Ont.
Absent a requirement in your employment contract to be a Canadian resident, your employer cannot require you to stay in Canada. However, if you wish to avail yourself of any recall opportunities, you should make sure your employer has your most up-to-date contact information. Also, if you applied for EI benefits, be aware that workers are not usually eligible to receive regular benefits while away from Canada unless you show that you are available for work in Canada while abroad. You must also notify Service Canada of your travel. Contact Service Canada directly for more information on specific rules that may apply to your situation.
If your employer recalls you to work, keep in mind that you may be required to report to work in person within a specific timeframe and you will be subject to strict quarantine and self-isolation rules upon your return to Canada. Timelines for recall may vary based on provincial employment standards legislation and/or your employment contract. For instance, the Alberta Employment Standards Code requires that recall notices state that the employee must return to work within seven days of the date the recall notice is served on the employee. If you do not comply with these requirements, your employer is likely entitled to terminate your employment without notice or severance.
Separate considerations may apply if you are a unionized employee. Please contact your union for advice as to any recall rights and obligations that may apply under your collective agreement.
The Second Answer
Randy Ai, principal lawyer, Randy Ai Law Office, Toronto, Ont.
During the pandemic, many employees have moved away to other locations or jurisdictions, and have continued to work from home without any problems. However, it is expected that once the pandemic is over, a number of employers will request that their employees return to the office.
Currently, since you have been laid off and are presumably not performing any active duties, it is unlikely you would be terminated by the employer for moving to a different jurisdiction. However, if you are recalled, the employer may (or may not) request that you return to the office. This depends on whether a long-term work-from-home plan could be feasible for your type of work and duties. If on-site work is an essential component of your job description, then you could face discipline if you fail to return to the office. Alternatively, if you fail to return, the employer could declare that you have abandoned your employment, precipitating the end of the employment relationship.
Once you are recalled, you should notify the employer that you are in a different jurisdiction (if your plan is not to return to Toronto). If your employer is understanding and your position allows for extended work-from-home options, the employer may allow you to work remotely. Finally, prior to your recall, if you disclose to your employer that you have moved to a different jurisdiction, the employer may (or may not) use that information to determine your date of recall, as recall decisions are generally made internally by the employer at the employer’s sole discretion.
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