A common question that arises these days is whether the employer has to, legally speaking, permit its employees to work from home during the COVID-19 pandemic. The answer is a qualified “no.”
Absent the passing of legislation or an order by the government, employers do not have to allow their employees to work from home. Indeed, some employers are simply unable to do so because the physical presence of the employee is a job requirement.
In other instances, where a certain job may be performed remotely, an employer may choose to allow its employees to work from home if the alternative would be failure to comply with the employer’s obligations to ensure a safe and healthy workplace. However, failure to provide employees with a safe and healthy workplace is not a “cart blanche” for the employee’s right to work remotely per se. Instead, the employer is legally obligated to facilitate a safe work environment instead of extending the definition of “workplace” to a remote location. Thus, failure to attend at a safe workplace while insisting on the ability to work from home is an act of insubordination which constitutes cause for dismissal.
Ontario’s employers should, however, be mindful of their obligation to ensure compliance with the Ontario Human Rights Code, 1990 (“Code”). This means that if, for instance, a parent employee requires accommodation that would necessitate working from home due to a lack of childcare obligations the employer may have to facilitate such an accommodation to the point of undue hardship. What constitutes undue hardship under Ontario’s legislation are financial costs, outside funding, and health and safety risks. Such an accommodation (including the looking into the possibility of such an accommodation) would only be expected if a protected ground under the Code is triggered.
Although there are recurring themes during this unfortunate time, each case should be contextually analyzed with a view to the employer’s legal obligations towards its employees and the organization’s practical business interests.
