During the COVID-19 pandemic, many employers quickly transitioned their employees to remote work in order to prevent transition of COVID-19 in the workplace. Some employees loved this change and relished the ability to work from home. However, as COVID-19 case counts continue to fall and vaccinations rates continue to rise, some employers are now looking to transition their employees back to working from the office. So this has a lot of employees who are very happy to work from home thinking about what are their options. Can their employer force them to return to work at the office?
We do not want to be the bearer of bad news to employees but it is generally the case that the employer has the right to set out where their employees must do their job. Therefore, if they want their employees to work from the office, it could be that that is where the employee must do the work.
However, there are a few ways in which employees could argue that they should remain working remotely. The first is that the employer has an obligation to provide a safe workplace. If they do not provide a safe workplace, the employee has the right to refuse the work. The second is that the employee has a duty to accommodate under Ontario’s Human Rights Code, 1990 (“Code”). For instance, the employee may request that the employer accommodate a particular disability by allowing them to remain working from home. The third is if working from home has become a contractual term between the employer and the employee. Finally, an employee may invoke the equitable argument of detrimental reliance in that the employee has relied on the remote work arrangement to the point that switching back to work from the office would be untenable and unfair.
Workplace Health and Safety
The employer can only request that the employee returns to work if the workplace is safe. This means that the employer must abide by any public health mandates put forth by the Ontario government in order to combat COVID-19. For instance, the employer should set out various rules around physical distancing, mask-wearing and cleaning or disinfecting high-touch areas of the workplace. Failure to do so could result in liability under Ontario’s occupational, health and safety legislation.
Accommodation under the Human Rights Code
Ontario’s Code protects employees from discrimination regardless of where their workplace is located. To remind our readers, employers have a duty to accommodate employees to the point of undue hardship. With respect to the duty to accommodate within the work-from-home context there may be an increase in certain types of family status or disability accommodation requests that may be unique to the COVID-19 pandemic. For instance, there may be an increase in concerns about the flexibility of working hours if the employee also has children at home because of school closures or childcare issues because of the COVID-19 pandemic. The employee may also request an accommodation because they have a pre-existing health condition or due to their advanced age that would make that individual more susceptible to COVID-19. General fear of COVID-19 will not be serious enough to trigger an accommodation under the Code. However, employers should address these requests fairly and in accordance with Ontario’s human rights legislation.
If the employer and the employee have agreed that moving forward remote work would be fundamental in the parties’ relationship, such an arrangement may be contractually binding on the employer. This means that the employer’s sudden insistence to work from the office may be a breach of a fundamental term of the parties’ agreement, which would entitle the employee to assert constructive dismissal.
Although a less likely option, the principles of equity may come to the aid of employees who have been working remotely for a long period of time and have grown to detrimentally rely on the arrangement. For instance, an employee working from home may have spent considerable funds on office equipment at the employer’s insistence or have taken irreversible material steps such as moving to a different province with the employer’s full knowledge and consent that would render a return to the employer’s physical location practically impossible. In such an instance, an employee may be able to make an appeal to conscience in that a demand to return to work may be unfair. However, the reason for equity’s invocation has to be serious enough failing which the employee is unlikely to succeed.
Generally, employers have to right to set out where their employees must do their job. Employees may be able to argue that they should continue to remain working remotely only in a few specific situations. It may not be enough for the employee to make claims about certain vague health considerations or generalized claims of risk related to COVID-19 in order to remain working remotely rather than from the office and any such assertions have to be assessed on a case-by-case basis with the specific context in mind. Similarly, for remote work to become a contractual term there has to be a clear understanding that the parties have intended it to be legally binding. Finally, an employee’s detrimental reliance from an equity perspective may be a possibility but any such reliance has to appeal to the rules of conscience and fairness, which have to be serious enough to have bearing on a specific situation.