As businesses and workplaces are reopening and life is shifting to the new normal, many employees who have been working from home during the pandemic have begun to express reluctance in returning to the office. Some have come to realize that they much prefer working remotely, having thrived in a more flexible, comfortable home work environment. Others are being hit with a tidal wave of anxiety whenever they think about physically showing up to work; it has been months and months since they last interacted with their colleagues in person. As more people refuse to return to work, what are employers to do?
Can an employer require an employee return to work?
As the pandemic comes to a close (pending any further waves), the conditions which justified work from home arrangements have begun to disappear. There is little doubt that employers will come across situations in which their employees assert that remote work has become a fundamental term of their employment, and that requiring them to forego this arrangement is tantamount to constructive dismissal. In these circumstances, employers may want to consider whether returning to the office is really necessary, at the potential cost of morale and attrition. Employers will want to think about what they can do to reduce constructive dismissal risk. Read on!
Options for reducing liability on a constructive dismissal claim
To assist with this changeover in the workplace setup, an employer could consider entering into a contract with their employees in which their employees’ remote work arrangements are contingent on their agreement to physically return to the workplace with a reasonable amount of advance notice and that failure to accept this change will result in termination at the end of the notice period. That way, the employer is in a stronger position to argue that the employee consented to the altered terms of the employment contract, limiting the employer’s liability on a constructive dismissal claim.
Some employers will find that some employees value working from home so much that they are willing to take a pay cut to continue this arrangement in a post-pandemic environment. Employers who are met with this scenario and are open to this arrangement should, in a similar manner, have the employees expressly agree to this in writing.
Recommendations for best practices
Given the relative novelty of the post-pandemic trend of employers requiring employees to return to work and the lack of judicial clarity around refusals in this particular situation, employers should approach making changes to their employees’ work locations with caution, especially if their employees are able to successfully continue remote work.
Employers would be well-advised to ease employees into physically returning to work. It’s not difficult to recall the struggles that many workplaces encountered from the shock of having to suddenly shift from in-person to at-home work arrangements. It is only reasonable to expect that transitioning back to the physical workplace after over a year of being at home will require time and adjustments.
Employers could consider allowing for a hybrid option at the beginning of the return to the office arrangement. Normalizing the challenging nature of returning in person and engaging in conversations with employees to ensure they feel supported could go a long way in helping an employer avoid a potential chain of resignations or tricky legal situations down the road. Employers should also be transparent in communications with employees about reopening plans to diminish employee uncertainty prior to their return.
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