If I have more seniority at a company, should I be asked back to work ahead of my colleagues?

My team had a large number of staff that were temporarily laid off due to COVID-19. We all do the same job. One co-worker was asked to return to work before me, even though I have been working at the company three years longer. I haven’t been asked to return yet. I am 48 years old, so more than a decade older than the co-worker that was asked to return.

Where the employee chooses to accept the layoff, seniority does not have to be considered when recalling employees back to work. Non-unionized employers do not have to account for seniority or even experience when recalling employees. It is the exclusive right of the employer to determine the needs of the business as well as which employees best meet these needs. This means that a more junior employee may be recalled before a more senior one.

In addition, when recalling employees, a company may also not consider whether an employee suffers from a disability. While the employer may think that it is trying to protect its employees, it is not up to the employer to determine whether an employee is too vulnerable to work. It is up to the employee and the employee’s doctor to seek accommodation, if needed, and an employer that is too proactive may find itself on the wrong side of a discrimination claim.

When deciding which employees should be recalled to work, employers may consider a variety of factors, such as skills, performance, reporting relationships and even wages, since recalling lower-earning employees first may help keep payroll costs down. As businesses reopen, they will also need to consider workplace safety and how best to comply with recommendations regarding reducing the risk of exposure to COVID-19.

If you are keen to return to work, I suggest that you contact your employer to make your feelings known. You can also discuss ways to mitigate the risks of your use of public transit. Some employers are experiencing resistance from employees who are asked to return to work. This may be due to health concerns, family responsibilities and even the desirability of not working and receiving government support, which may replace or even exceed the employee’s regular wages.

Globe_Careers It should be based on your skill level and talent not just your age and service time.

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