With the number of vaccinated individuals increasing by the day, managers frustrated by the downside of remote work are cautiously optimistic about the future. Jealously watching restaurants and entertainment venues fill their seats, they envision the day when workplaces once again buzz with productive activity.
This dream isn’t universally shared, especially amongst employees. Freed from the office for over a year and a half, some workers have moved to new homes that better fit with their personal lives and pandemic-related risk tolerance. Others have simply come to value the comfort and flexibility that working from home can provide. And this crowd isn’t happy with the prospect of having to trade in their easy-start mornings and cozy sweatpants for formal work attire and long commutes.
According to a Leger survey of 2,600 workers conducted this summer, just 20 per cent of respondents from across Canada and the United States want to return to the office every day, while 19 per cent never want to come back and the rest hope for some form of hybrid remote/office model. If ordered to return full time, more than a third of respondents indicated they would dust off their resumes and start seeking another job.
Clearly, whether the workplace as we used to know it will survive the pandemic remains an open question, one complicated by more than employment law. This article examines the risks involved with issuing an employee recall and offers advice on how to mitigate them.
Perhaps to the surprise and chagrin of workers who dread a return to the old “normal,” employees do not have the right to dictate where they work. It is a longstanding principle of employment law that organizations can manage their workplace as they see fit. This means management can dictate how and where employees carry out their work.
That said, forcing employees to utilize the physical workplace has become slightly more complicated because so many people have been working remotely for almost two years now. Workers who have been happily plugging away at being productive from home may attempt to allege that a mandated return to the office amounts to a constructive dismissal.
A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of employment without providing reasonable notice of that change to the employee. While the employer has not formally terminated the employee, a termination can be “constructed” from the employer’s actions and the employment agreement is said to have been repudiated.
In the case of a return-to-workplace requirement, an employee would have to argue that the right to work remotely has become a permanent part of the terms and conditions of their employment. In addition, the employee would have to resign from their position and take the position that they were (constructively) terminated as a result of the employer’s attempt to mandate a workplace return. Proving a constructive dismissal can be challenging for employees at the best of times. In the context of the pandemic, where employers were forced to make drastic changes to their business models to survive, it is highly unlikely that a court would view the employer’s willingness to allow remote working during the health crisis as a modification of the terms and conditions of employment. For this reason, and in this context, it is unlikely that a constructive dismissal claim on this basis would be successful.
It is, however, worth noting that the likelihood of remote work being deemed a term of employment increases the longer employers allow it to go on without having some discussion about a return to the office in the near future. For this reason, we recommend that employers wishing to bring people back start thinking about adopting return-to-workplace policies sooner rather than later.
Human Rights and the Duty to Accommodate
Another issue involves employees who request to be exempt from a return-to-workplace order based on reasons that fall under grounds protected by human rights legislation, including disability and family status issues. In such a case, an employer’s first step should be to request documentation to substantiate the request. If someone can show a bona fide basis to refuse a return-to-the-office policy based on a protected ground, their employer has a duty to accommodate them to the point of undue hardship.
Appropriate accommodation will vary depending on the circumstances of each case, but it may include continuing to allow the employee to work from home (if feasible) or providing the employee with a flexible working arrangement. It is important to note that although employers have a duty to accommodate bona fide human rights issues, the employee does not have the right to dictate exactly what type of accommodation the employer provides. That is, the employee is entitled to a reasonable accommodation and not a perfect accommodation. Determination of what is reasonable in the circumstances will require the employer and the employee to work together to consider all options that may be available and whether they are feasible for both parties.
Work Refusals Under Health and Safety Legislation
Employers across Canada have a positive obligation to take reasonable care to protect the health and safety of their employees pursuant to applicable workers’ compensation legislation and/or occupational health and safety legislation. Although workers’ compensation/occupational health and safety legislation varies across the country, each province’s legislation provides that employees have a right to refuse to work if they feel that the work is unsafe.
In a mandated return to the workplace, employers should be aware that some employees might attempt to invoke this right to refuse to work. In such a case, the mechanism provided for a work refusal under the applicable legislation must be followed.
Generally speaking, the threshold is high in order to justify a work refusal under occupational health and safety legislation, and an employee’s fear of contracting COVID-19, in itself, will not be sufficient. For example, the British Columbia Workers’ Compensation Board has stated that in order to justify a work refusal under the British Columbia Workers Compensation Act, employees must show that the work puts them at risk of “undue harm.” Undue harm has been taken to mean harm that is excessive or unwarranted, inappropriate, or disproportionate. That is, the risk to the worker must be excessive and must present an unwarranted risk of injury over and above the risk to the general public. In addition, the employee must have “reasonable cause” to believe that harm will result. Reasonable cause implies an objective standard of a reasonable person and cannot just be based on the worker’s own personal opinion, meaning that the concern must be reasonable and actually supported by evidence.
In our view, if employers have taken the step of conducting a risk assessment and implementing the required safety plans in accordance with governmental guidelines, it is unlikely that a work refusal under occupational health and safety legislation would be justified. This view seems to be supported by what has thus far been reported in regard to return-to-workplace policies. For instance, the Ontario Ministry of Labour reported that from March 2020 to June 2020, it had received 278 work refusal claims. However, of those 278 claims, 277 were denied.
Implementing Return-to-Workplace Policies
Employers need to consider more than the potential concerns outlined above when thinking about implementing a formal return-to-workplace policy. Morale should not be ignored because it impacts productivity. With many industries across Canada experiencing severe labour shortages, retention is another critical consideration.
In the United States, where the number of workers quitting their jobs has exceeded pre-pandemic highs for six straight months, a record 4.4 million people ditched their employers in September. According to a report by Statista, Americans are leaving their jobs in above-average numbers because the pandemic has led a lot of people to re-evaluate what they want out of life.
Not everybody agrees that Canada needs to prepare for a prolonged “Great Resignation.” Nevertheless, our employees can also be moved to reconsider priorities, and so forcing people to give up workplace flexibility against their will can prove costly, especially when labour is in high demand.
If employers are determined to bring people back after considering all the relevant factors, they should implement and follow proper protocols.
Prior to issuing an employee recall, management should conduct the assessments required to understand pandemic-related health risks and take the appropriate precautions to mitigate them. In formulating policies relating to safety, employers should consider occupational health and safety legislation as well as any public health orders that may impact their operations. Many workers’ compensation authorities have published guidelines for addressing safety issues in the workplace that should be considered. As discussed above, having appropriate safety plans in place will also help mitigate against any potential work refusals under workers’ compensation and/or occupational health and safety legislation.
In the same vein, employers should consider whether there is a need to update existing employment policies, or whether new policies should be prepared, particularly if the employer is considering maintaining only a partial return to the workplace or some form of flexible work arrangement.
Once proper policies are in place, they must be clearly communicated as early as possible. Providing ample notice to employees of a mandated return to the workplace will ensure that employees have sufficient time to organize their affairs to comply. This will minimize the risk of complaints and bring any potential accommodation issues to the forefront so that employers can deal with them effectively.
Whether employers like it or not, the pandemic has changed how many people think about work, and for more than a few individuals the flexibility that COVID-19 forced upon the workplace has become something that’s no longer considered negotiable. Nevertheless, allowing employees to work remotely during the health crisis has not legally tied the hands of employers. If they wish to recall employees and try to resume their pre-pandemic operations, they can do so. As they attempt to move back to the future, they just need to be aware of the risks and minimize them with the appropriate policies and procedures.