Why are return-to-office work mandates so controversial?
Remote work is not necessarily a new form of how people work but it was very common during the years of the COVID-19 pandemic. It was simply much safer to be able to work from home than from the employer’s physical workplace during that time. However, now that COVID-19 health restrictions are no longer necessary, there is a trend where employers are pushing employees to return to work in-person.
Return-to-office mandates that require remote employees to return to work in-person are widespread in 2024. However, they have been viewed by some to be controversial. To be clear these “mandates” are simply a demand by the employer for remote employees to return to work at the employer’s physical workplace(s) in-person. Generally, if an employee refuses to do so, then the employer will deem that the employee has resigned from their employment. Sometimes the employer has asked for a partial in-person return which can be called a hybrid work arrangement. However, employees often do not want to abide by the employer’s demand to return to work in-person in either capacity. Employees who have worked remotely for a lengthy period have often established a comfortable remote work environment and routine. They may have eliminated a commute or created a more flexible work-life schedule and do not want to change it.
For example, Amazon (the large multinational online delivery retailer) has required all employees to work in-person at Amazon’s physical workplace(s) beginning in January 2025. Amazon had previously required employees to work in a hybrid capacity such that employees were obliged to work physically in-person for at least three days a week. The company has cited various advantages of an in-person workplace including faster learning of company information and processes, better and more efficient communication as well as increased collaboration among employees.
There are some situations where the employee can refuse to comply with the return-to-office mandate of the employer. For instance, if the employee was specifically hired as a remote employee or that they have worked as a remote employee for a long period of time, the employee could argue that a remote work arrangement has become a term of their employment. In those cases, they may be able to refuse the demand of the employer to return to the office. Another common reason to refuse a return-to-office mandate by the employer could be a medical or disability accommodation of the employee. There could also be family responsibilities that prevent the employee from returning to the office in-person as well. In the latter two scenarios, in Ontario employees may be in a position to argue that their remote work arrangement ought to be accommodated as a human rights issue. In such instances, an employer has to accommodate the employee to the point of undue hardship.
Is an employee facing a return-to-office mandate constructively dismissed?
Possibly. To remind our readers, constructive dismissal occurs when the employee’s fundamental terms of employment are changed unilaterally by the employer, if the employer evinces an intention to not be bound by fundamental terms or if the employee is subjected to some sort of illegal act such as harassment or a toxic work environment. The crux of virtually every constructive dismissal case is that an employer makes or intends to make a substantial change to the employee’s terms of employment without the employee’s consent. Generally, the terms of employment should be a key aspect of the employment contract or relationship. Changes that are too small or to less important terms will not trigger constructive dismissal.
In instances of return-to-office mandates, whether such a demand by the employer amounts to constructive dismissal would be determined on a case-by-case basis viewed in an objective manner. If the employee’s job was originally set out as a job that was remote or if the employee has been a remote employee for a sustained period, the employer may not be able to enforce a return-to-office mandate without the risk of on a constructive dismissal claim by the employee. In a case where an employee has been working remotely for a sustained period, the employee may be able to argue in equity that in spite of the fact that the employer has a legal right to recall the employee, the employee may claim that he or she has detrimentally relied on the arrangement and that they may not be able to return to work in-person.
Return-to-Office Mandates will create challenges for the Employer
Employers are facing increasing tensions in recent years related to remote work. A way to work around these tensions is to ensure that there are no surprises when it comes to expectations of employers and employees around remote work. Clear workplace policies, employment agreement(s) including a provision related to remote work and simple communication can assist the employer (and employee) in understanding these expectations and avoid conflict.
How Zeilikman Law can help
The bottom line is that an employee facing a back-to-office mandate should not rush to accept the terms as set out by the employer without question. They have the option to approach an employment lawyer to assist them in navigating these confusing waters to ensure the best possible outcome for themselves and to ensure that their legal entitlements are protected.
Furthermore, employers also should use the assistance of an employment lawyer to determine if their situation is one in which a return-to-office mandate will result in a possible constructive dismissal claim by the employee and what to do if that occurs. It would be a smart choice to use the help of an employment lawyer to create certain workplace policies, contracts etc. to allow a call back to the office in-person that will result in less risk of a constructive dismissal claim by the employee.
