Many Canadian employers have now directed staff to return to the office on a full-time or part-time basis. But for a variety of reasons – some tied to health and safety concerns, and others because of lifestyle interests – some workers are hesitant to embrace an in-person return. Do workplace laws permit employers to recall staff to the office, and what happens if those workers refuse to comply?
Here are some common scenarios we have encountered:
Workers hired for remote work:
Some workers were explicitly hired on the basis that their jobs would be performed remotely. If so, this is a material term and condition of their employment. An employer who demands that such a worker work from the office, without securing consent, is implementing a fundamental change to the structure of their employment. While these workers cannot insist upon continuing to work remotely, they may be able to refuse to work from the office and, in some cases, they can treat their employment as over and claim damages for constructive dismissal (essentially severance pay while looking for other work).
An employer and worker can always agree to make changes to key terms of their relationship. Thus, in these instances, employers can consider offering the worker a financial or other incentive to physically attend the office when this was not previously a requirement of the job.
Employers with remote work policies:
Many employers implemented specific work-from-home policies at some point during the pandemic, permitting workers to work remotely on a temporary basis, but retaining the right to recall them at their discretion and with little to no notice. In many instances, workers were actually required to sign off on these policies in exchange for the right to continue to work from home.
These policies, particularly if workers agreed to them, are generally legal and binding, and will dictate what rights workers and companies have with respect to a change in work-from-home arrangements. Assuming these policies were properly drafted and contemplated recalling workers to the office at their discretion, employers clearly have the right to do so and workers will need to return – or can be treated as abandoning their jobs or effectively resigning from their employment.
Situations where expectations were not made clear:
In many cases, workers who were sent to work from home during the pandemic were not given a clear indication if and when they were expected to return. Some even relocated on the assumption they would not need to come back to the workplace. Can workers who relied on this ambiguity, including those who have relocated, assert any legal rights? This is a more difficult question to answer.
If remote work, even from a different city, can be treated as having become an implied right, then it can be difficult for employers to suddenly recall these workers to the office, without providing reasonable notice or obtaining that worker’s consent. Implied rights can arise where employers have not declared a clear expectation that workers will be or can be recalled, especially after a long passage of time.
Similarly, it is difficult for employers to object to a situation where they became aware that workers relocated much farther away, but did not take any issue with it at the time.
Suddenly recalling workers in these situations, especially if employers knew about and condoned a relocation, can also potentially be treated as a termination, especially if employers do not provide any other alternative.
In these scenarios, it would be wise for employers to provide advance notice of a recall instead of making any changes effective immediately. Employers have far more leniency when providing fair notice of a change to working conditions.
Some workers may be permitted to insist upon remote work as legal accommodation for a protected human-rights ground. For example, those with child-care or elder-care responsibilities may have a legal right to continue to work from home, part-time or full-time, to enable them to meet those obligations. Employees with serious medical conditions may also be able to argue that they are unable to return to the office altogether for health considerations.
Human-rights accommodations are not unfettered rights, however. Workers with child-care or elder-care commitments must explore and undertake other arrangements that allow them to return to the office, if possible, and cannot simply insist they need not return. Further, from a health and safety perspective, it is increasingly difficult for workers to now argue that fear of contracting COVID-19 at the work place is sufficient for them to remain working from home.
As in all situations here, clarity is key. Employers who seek to recall their workers should disseminate a clear and consistent message that they require a return to in-office work and that, aside from valid human-rights exceptions, the rules will apply equally to all staff. Workers who are contemplating relocating, or who are making living arrangements based on an expectation of the continuation of remote or hybrid work, should not assume they cannot ever be required to attend the office.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. He can be reached at Dan@canadaemploymentlawyer.com. Rachel Patten is with Whitten & Lublin.