Do you want your employees back in the office and they simply don’t want to return? Or are you an employee who is working perfectly fine from home and is suddenly being required to attend the office in person?
One of the biggest challenges employers and employees faced since the COVID-19 pandemic — and are still facing currently — is employers implementing remote and hybrid work arrangements and employees pushing back.
The question “can employers force employees back to the office?” is not the only one that employers and employees have grappled with since the pandemic. You have probably also wondered whether employees can have the right to work remotely, and considerations to keep in mind when it comes to remote or hybrid work and returning back to the office. This blog post discusses these issues.
Employers can generally dictate work location
Generally speaking, employees cannot refuse to return to the office unless:
- they have an existing right to work remotely,
- they are refusing unsafe work,
- they have a legitimate need for accommodation based on a protected ground under human rights legislation such as disability, or
- they are on a leave of absence.
With respect to an existing right to work remotely, this may be set out in an employment contract or a workplace policy. In addition, if the employer has allowed employees to work remotely during the pandemic and there was no communication regarding expectations to return to in-person work in the future, the employee may end up having a right to work remotely.
While there is no hard and fast rule about this, employers may lose the ability to dictate where their employees will work from, simply due to a lack of proper communication and documentation.
Effective communication is key
If employers want remote work to be a temporary arrangement, they must effectively communicate their expectations so it is clear that 1) remote work is temporary, and 2) the organization expects to have employees back at the office, even if on a hybrid model, in the near future.
Effective communication and documentation are an employer’s best friends to maximize their rights & flexibility, and minimize potential liability. Employees should be wary when employers suddenly provide them with documentation that is contrary to their expectations, and should not accept or sign anything prior to seeking legal advice.
Whether you are an employer or an employee, we recommend that you seek legal advice from an Employment Lawyer to understand your rights and obligations and make informed decisions.
Consider the need for accommodation
Employers must be mindful of the potential need for accommodation, instead of imposing a return to the office mandate without considering exceptions. Employers are obligated to accommodate an employee’s legitimate needs based on a protected ground under human rights legislation, such as disability or family status, up to the point of undue hardship. Undue hardship is a high threshold to meet. You can read more about the duty to accommodate here, here and here.
That said, employers are not obligated to accommodate an employee’s preference; they are obligated to provide a reasonable accommodation. Accordingly, if remote work is the only reasonable accommodation under the circumstances, then the employer cannot force the employee to return to the office. However, if remote work is simply the employee’s preference, then an employer can impose return to the office (assuming that none of the other exceptions noted above are applicable, such as refusing unsafe work or having an existing right to work remotely).
Employers must be cautious in considering whether there is a legitimate need for accommodation and assessing reasonable accommodation options. Otherwise, they can be exposed to substantial liability.
Options for addressing remote work requests
Employers can either have a hybrid work model where the employees alternate between remote and in-person work, or a purely remote work model — whether temporary or permanent. Different employees can have different arrangements depending on their roles (such as those dealing with the public in-person versus those who can do their job remotely) and their unique circumstances (such as a need for accommodation).
So what are some considerations to keep in mind when it comes to remote or hybrid work and returning back to the office?
First and foremost, remember that employment relationships are legal relationships. Employers should ensure that they put their arrangements in writing before remote/hybrid work starts. This is not only limited to having effective contracts in place but also ensuring that they have a remote/hybrid work policy. Employees should seek legal advice before accepting or signing anything.
Second, both employers and employees should consider the employee’s work location. If the employee is working from home, and they are located in a different province, the laws that apply may be different. Even if the employee is located within Canada, each province has its own employment standards legislation with various nuances. If the employer is not careful, they may inadvertently breach the statute and be on the hook for liability. Similarly, employees should be mindful of the minimum standards applicable to their situation to ensure they get what they are entitled to.
Next, consider what equipment will be required for the remote or hybrid workers to be able to do their job. Consider what equipment will be provided by the organization and what the employees will be required to provide for themselves. In addition, consider health and safety in a remote work environment (e.g. whether employees have a proper work setup that is not going to cause injuries). Further, consider how the employer will manage their remote employees (e.g. whether the employer will use electronic monitoring to manage remote employees and whether they are obligated to have an Electronic Monitoring Policy in place).
Aside from the legal implications, employers should also consider whether asking employees to return to the office makes practical sense. For example, will you lose your talent in the process? And if so, can you afford to do so?
Last but not the least, employers should effectively communicate with their employees and document it to ensure their expectations are clearly set out. If there is nothing in writing regarding remote or hybrid work and the employer’s expectations, then recalling employees back to the office may constitute a constructive dismissal of their employment, which means employees could be entitled to up to two years of pay.
If you are an employee, we strongly recommend that you seek legal advice before accepting or signing anything. Doing so will help you ensure you understand your rights, obligations, and get what you are entitled to.
As a best practice, we strongly recommend employers to ensure they have proper contracts and policies in place to not only protect themselves from liability but also to strategically manage the workforce. After all, why play the game when you can make the rules?
By Nadia Zaman