Can my employer force me to quit my second job?

The Question

Can my employer force me to quit my second job? Because of the pandemic, they are saying it’s a health and safety issue even though the employer of my second job is following all the public health and safety rules.

The First Answer

Shibil Siddiqi, employment and human rights lawyer, Progressive Barristers, Toronto

There is no general rule prohibiting someone from working a second job, but there are exceptions. The most common ones are where a second job is prohibited by the employment contract, creates a conflict of interest or causes performance-related issues such as unavailability for shifts, absenteeism, tardiness or lower productivity. There may also be legal restrictions, such as the province of Ontario’s recent ban on working at more than one long-term care facility.

Barring any of the above exceptions applying, the answer to this question will depend on whether the employer’s COVID-19-related concerns about the second job are reasonable in the circumstances and whether there are less restrictive ways of addressing those concerns. This requires assessing the nature of both jobs.

The employer may be able to justify its restriction if it normally serves or employs medically vulnerable or immunocompromised persons, or if there is a heightened risk of COVID-19 exposure at the second job (e.g. it involves working front line at a long-term care facility). Where the second employer is truly following public health guidance and does not present an increased risk of infection, there is likely no cause to discipline or terminate an employee who refuses to quit their second job.

Provincially regulated employees in Ontario can generally be terminated without cause upon reasonable notice. This may give an employer undue leverage to force an employee to quit their second job or face termination. An employee in these circumstances may be entitled to financial compensation for wrongful dismissal, harassment or discrimination. This is likely cold comfort for an employee who must work two jobs to make ends meet.

The Second Answer

Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg

First of all, let’s assume that you are not working in a job where government has mandated that you cannot work in a particular second job. For example, some jurisdictions now prohibit health care workers from working in more than one personal care home at the same time so as to avoid the risk of transmitting COVID-19 from one home to another. That situation is a bit complicated and beyond the scope of this column.

Aside from that situation, your employment can end in a couple of ways. You can quit or retire or you can be fired for just cause (doing something really bad). Neither of these really fits the bill here.

Your employment can be “frustrated” which means that through no fault of your own or your employer it becomes impossible for you to do your job any more. This might apply to the health care worker situation above, depending on the circumstances.

Your employment can be terminated without just cause. This means that your employer can terminate your employment, even when you have done nothing wrong, provided you are given the appropriate amount of working notice, pay in lieu of working notice, or a combination of the two. If your employer is uncomfortable with your potential exposure at a second job, it can opt to terminate and provide notice. In this case, your employer is not really forcing you to quit, it is really forcing you to choose between the two jobs.

If there is a union at your workplace, other rules will apply, and you should consult with your union representative.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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